Pickford & Pickford (No 3) - [2024] FedCFamC1F 652

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pickford & Pickford (No 3) [2024] FedCFamC1F 652

File number(s): SYC 3365 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 26 September 2024

Catchwords: FAMILY LAW – STAY APPLICATION – Where the father seeks a stay of all but two final orders made pending appeal – Where the mother opposes the stay application – Where the Independent Children’s Lawyer consents to an order requiring her to meet with the children to be stayed – Where this order is stayed – Where the Court finds that granting the stay application is not in the children’s best interests – Where the Court finds that failing to grant the stay application will not render the father’s appeal nugatory – Where the Court grants the mother an extension time to comply with the final orders to discharge and refinance the mortgage over the matrimonial home into her sole name.

Legislation: Family Law Act 1975 (Cth) ss 61C, 61CA

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Clemett and Clemett (1981) FLC 91-013; [1980] FamCA 90

Goldsmith & Stinson(No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25

Kelly and Kelly (1981) FLC 91-007

Pickford & Pickford (No 2) [2024] FedCFamC1F 500

Division Division 1 First Instance

Number of paragraphs: 70

Date of hearing: 19 September 2024

Place: Sydney

Counsel for the Applicant: Mr Sansom SC

Solicitor for the Applicant: ATW Family Law

Counsel for the Respondent: Mr Roche SC and Ms Hall

Solicitor for the Respondent: Long Saad Woodbridge Lawyers

Counsel for the Independent Children's Lawyer: Ms Tabbernor

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law
ORDERS

SYC 3365 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PICKFORD

Applicant

AND:
MS PICKFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

26 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.Orders 32(c) and (d) made 26 July 2024 (“the final orders”) be stayed pending the outcome of the appeal with the file number NAA213/2024.
2.The Applicant’s Application in a Proceeding filed 21 August 2024 otherwise be dismissed.
3.The Respondent’s oral application for the time period specified in Order 35 of the final orders to be extended from 60 days to 90 days be granted and, consequentially, the time periods specified in Orders 34, 36, and 37 of the final orders be likewise extended from 60 days to 90 days.

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 Pickford & Pickford has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

By way of an Application in a Proceeding filed 21 August 2024 the father (“the father”) seeks orders which stay Orders 1–16 and 18–47 made by me on 26 July 2024 (“the final orders”) pending the determination of a Notice of Appeal filed by him on 15 August 2024. In his written submissions filed 12 September 2024 the father clarified that he does not seek for Orders 2 and 17 of the final orders to be stayed. The final orders are reproduced in the first schedule to these reasons.
By way of Response to Application in a Proceeding filed 6 September 2024, and as varied in submissions made by her senior counsel on 19 September 2024, the mother (“the mother”) asks for the father’s application to be dismissed, but in the alternative consents to the staying of Orders 15, 19–22, 32(c), 33–34, 37–39, and 42–46 of the final orders. In addition, an oral application was made for an extension by 30 days of the time provision in Order 35 of the final orders. This was opposed by the father.
The Independent Children’s Lawyer proposed only a partial stay of Order 32 relating to the appointment of an Independent Children’s Lawyer.
These reasons for judgment explain the orders that the Court has made.
BACKGROUND
The mother was the applicant at the final hearing but is the respondent to the present application. She is 48 years old and is employed as a Manager at an Organisation (on secondment). The father was the respondent at the final hearing but is the applicant in the present application. He is 50 years old and describes himself as a finance professional and a partner and director of a business. He is also the current chairman of the business’ Finance Committee. The parties met in late 2012, commenced cohabitation in early 2013 or 2014 and married in 2014. They separated in late 2018 and divorced in 2020. There are two children of the marriage, X who is nine years old and Y who is six years old (“the children”). The children’s living arrangements before the making of the final orders were governed by orders made 11 August 2020 and consent orders made on 7 June 2021 which provided for the children to spend time with the father each alternate weekend from 2.00 pm or the conclusion of school on Friday to the start of school on Monday, and each alternate Thursday night from 2.00 pm or the conclusion of school on Thursday to the start of school on Friday, with additional time during school holidays.
My reasons for judgment (Pickford & Pickford (No 2) [2024] FedCFamC1F 500) (“my reasons”) explained the final orders for both parenting and property. In short, orders were made for the children to live with the mother and to spend alternate weekends with the father in a four-night block, as well as half of school holidays and additional time on special occasions. The mother was given sole parental responsibility, with an obligation to advise the father and consider his response. An Independent Children’s Lawyer was reappointed, and a restraint was put in place to prohibit the father from surveilling the mother and the children. The net asset pool was to be divided as to 55 per cent in favour of the father and 45 per cent in favour of the mother, with the mother to have the first opportunity to refinance the matrimonial home (“the matrimonial home”) into her sole name.
My reasons described the parties’ relationship which was characterised by “a lack of trust, ineffective communication, high conflict and a power struggle” (at [36]). The Court discussed the mother’s allegations of family violence and found that the father engaged in coercive and controlling behaviour including post-separation financial control, litigation abuse, surveillance, unnecessarily seeking an injunction against one of the mother’s friends, and unreasonably refusing the children certain medical treatments.
In terms of the existing parenting orders at the commencement of the final hearing, the orders made resulted in the following changes:
·The mother having sole parental responsibility for the children (where parental responsibility had previously not been allocated to either party);
·The children spending time with the father each alternate weekend in a four-night block from Thursday to Monday (rather than a three-night block from Friday to Monday in one week and Thursday night in the alternate week);
·The children spending slightly different amounts of time with both parties during the Christmas period, Mother’s Day and Father’s Day, and orders for the children to spend time with each of the parties on their own birthdays and each party’s birthday; and
·Slightly varied or fresh orders regarding changeover, communication, restraints, travel and miscellaneous issues.
THE NOTICE OF APPEAL
The father’s Notice of Appeal filed 15 August 2024 contains 29 grounds, not including sub‑grounds. The father contends that all the finals orders, save Order 17, are so infected by error of law that they should be set aside, and the matter remitted for retrial before another judge. The grounds of appeal contained in the Notice are reproduced in the second schedule to these reasons.
The appeal is listed for hearing before the Full Court on 22 November 2024. All parties seem to acknowledge the probability that a decision will not become available until after that date.
By way of brief overview, the errors of law contended on behalf of the father include errors in findings of fact and of law, denial of procedural fairness, errors in relation to findings as to assets and liabilities on the balance sheet, and a range of incidental matters.
THE EVIDENCE
In support of his case, the father relies upon the following material:
(a)Application in a Proceeding filed 21 August 2024;
(b)His affidavit filed 21 August 2024;
(c)His updated affidavit filed 18 September 2024;
(d)Written submissions filed 12 September 2024;
(e)My reasons for judgment (Pickford & Pickford (No 2) [2024] FedCFamC1F 500);
(f)Notice of Appeal filed 15 August 2024; and
(g)Various documents referred to in submissions and marked in chambers as Exhibits A1–A5, including:
(i)The subpoena to HH Bank and documents provided in response (pages 72, 91, 99, 106–107 of sleeve 22);
(ii)Annexure MP-6 of the father’s affidavit;
(iii)Annexure MP-10 of the father’s affidavit;
(iv)Annexure MP-21 of the father’s affidavit; and
(v)Annexure MP-24 of the father’s affidavit.
In support of her case, the mother relies upon the following material:
(a)Response to Application in a Proceeding filed 6 September 2024;
(b)Her affidavit filed 6 September 2024;
(c)Affidavit of Ms O filed 6 September 2024;
(d)Written submissions filed 12 September 2024; and
(e)Various documents marked in chambers as Exhibits R1–R3, including:
(i)Annexure A of the mother’s affidavit;
(ii)Annexure B of the mother’s affidavit; and
(iii)Annexure C of the mother’s affidavit.
In support of her case, the Independent Children’s Lawyer relies upon the following material:
(a)Written submissions filed 18 September 2024.
THE APPLICABLE LAW
The principles relevant to the present stay application were referred to by senior counsel for both parties as being those set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”) at [18]:
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known. The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
(Citations omitted)
THE SUBMISSIONS SUMMARISED
The father submitted that Orders 1, 3–16 and 18–47 of the final orders should be stayed pending the outcome of his appeal. He submitted that the mother’s proposal to take a piecemeal approach by only staying a handful of orders would result in confusion and require the parties to compare three sets of orders to determine which remain operative. The father contended that his appeal is “based on substantial grounds and is not a mere delaying tactic” and “it can be dealt with within a reasonable time” (Clemett and Clemett (1981) FLC 91-013 at 76,175). Referring to the principles in Aldridge & Keaton, the father submitted that: he has established a proper basis for the stay (which does not require any “special” or “exceptional” circumstances) and he has an arguable case; the children’s interim living arrangements are satisfactory and a stay would reduce the likelihood of the children being exposed to a further change in living arrangements if his appeal is successful; his appeal is bona fide; and, his appeal may be rendered nugatory if the stay is not granted. He referred to the mother’s alleged non-compliance with both the final orders and the filing directions for the stay proceedings and accused her of misleading the Court in respect of the property matter.
The mother’s primary position was that she opposed the stay outright, if she could be granted an extension of 30 days to comply with Order 35 of the final orders. In the alternative, as set out in her Response to Application in a Proceeding, she agreed to certain orders being stayed as well as an order restraining her from selling, transferring, mortgaging or in any way dealing with the matrimonial home other than in accordance with the final orders. The mother also referred to the principles in Aldridge & Keaton and submitted that: the father has not established a proper basis for his stay application; the father’s stay application would inevitably result in further change and disruption to the children who have settled into their new arrangements, which is not in their best interests; the father has not demonstrated that his appeal would be rendered nugatory if his stay application is not granted; his appeal does not have substantial prospects of success; and, fairness and the balance of convenience do not favour the father’s stay application because if granted, it will prevent the mother from transferring the matrimonial home into her own name and regaining control of her life and financial affairs.
The Independent Children’s Lawyer, first acknowledging the limited role she is performing in the current proceedings, submitted that it is unclear on what basis the father seeks for certain orders to be stayed (noting in particular Orders 18, 23 and 25), and that the practical effect of granting the stay application would be the resurrection of a plethora of interim orders, injunctions and ancillary orders, as well as procedural difficulties with the involvement of the formerly discharged and/or newly appointed Independent Children’s Lawyer. Also referring to the principles in Aldridge & Keaton, it was submitted that the Court should place weight on “the desirability of limiting the frequency of any change in a child’s living arrangements” (the Independent Children’s Lawyer’s written submissions, paragraph 14) and that it would be disruptive for the children’s care arrangements to be changed for potentially short periods of time. The Independent Children’s Lawyer conceded that without an in-depth knowledge of the matter, it is difficult to know if the mother would be prejudiced by a stay of the order for sole parental responsibility and whether or not the children would be able to access services or have decisions made in their best interests between now and the disposition of the appeal. She ultimately submitted that it is a matter for the Court to determine the potential impact of reverting back to the interim arrangements. The Independent Children’s Lawyer did, however, consent to a stay of Order 32(d) of the finals orders, which she says provided for her to meet with the children and explain the final orders to them. The Court believes that the Independent Children’s Lawyer in fact meant to refer to Order 32(c), which is the order directing the Independent Children’s Lawyer to “meet with the children to explain these orders”.
RELEVANT ISSUES
Despite the broad range of legal principles to be applied in a stay application, in the present matter the primary issues in contention are as follows:
·The risk that the father’s appeal may be rendered nugatory if the stay is not granted;
·The desirability of limiting the frequency of any change in the children’s living arrangements;
·The best interests of the children being a significant consideration; and
·Issues relating to the exercise of discretion.
DISCUSSION
Notwithstanding the invitation by the father to assess this in a holistic fashion, the Notice of Appeal relates to specified orders. It is the view of this Court that the issue of his appeal being rendered nugatory can only be determined by reference to the individual orders appealed, and the impact if a stay is not granted.
Order 1 discharges all previous orders. The effect of staying this order would be to potentially reactivate what senior counsel for the mother correctly described as “a patchwork quilt of orders” (Transcript 19 September 2024, p.31 lines 45–46). Senior counsel for the mother indicated, again correctly, that in place of the one comprehensive parenting order made on 26 July 2024, the parenting arrangements for the children would be governed by four sets of orders made 7 June 2021, 11 August 2020, 20 May 2020 and 29 July 2019. The Court cannot discern how this would be in the best interests of the children, particularly in the context of the present case which counsel for the Independent Children’s Lawyer described as one where “most of the children’s lives have been in heavily contentious litigation” (the Independent Children’s Lawyer’s written submissions, paragraph 22) Moreover, the Court cannot discern how the father’s appeal would be rendered nugatory if this order were not stayed.
Order 3 provides for the mother to have sole parental responsibility for the children. If Order 1 is stayed, notwithstanding the difficulties the Court has identified above, the effect of staying Order 3 would be for each party to have parental responsibility for the children under s 61C of the Family Law Act 1975 (Cth) (“the Act”), notwithstanding the father’s own proposal at the final hearing that he should have sole parental responsibility. I found that, logically, as each party sought orders for sole parental responsibility, they agreed that equal shared parental responsibility will not work (my reasons at [191]). Again, inferentially, the proposal of both parties reflected a belief that an order for equal shared parental responsibility was not in the best interests of the children. The Court cannot discern how the mere filing of the father’s appeal has changed this. It is neither in the best interests of the children to grant the stay of this order, nor would the father’s appeal be rendered nugatory by failing to grant the stay.

Order 4 requires the mother to advise the father of intended decisions and consider his response when making a decision as to major long-term issues concerning either of the children. At final hearing, the father’s proposal in relation to decision-making was in almost identical terms to those made in the final orders. The Court does not agree that a stay of this order would be in the children’s best interests because, there being no order for parental responsibility (if Order 3 were stayed as he proposes), the parties would still be “encouraged” to consult each other under s 61CA of the Act, which they have previously proven incapable of doing. Again, the Court cannot see how failing to grant the stay of this order would render the father’s appeal nugatory.
Order 5 provides for the children to live with the mother. An order for the children to live with the mother has been in place since 29 July 2019. If I stayed Order 5, as the father contends, the orders of 11 August 2020 would be reinstated. The stay of Order 5 lacks utility. There is no application by the father, for example, that if it is stayed the children should live with him. Indeed, his own proposal at final hearing was that the children should live in an equal shared care arrangement. This Court cannot discern how the father’s appeal will be rendered nugatory by failing to stay this order.
Order 6 provides for the children to spend time with the father during school terms each alternate week from 3.00 pm or the conclusion of school on Thursday to 9.00 am or the commencement of school on Monday. The effect of staying this order would effectively be to reinstate an arrangement whereby the children spend three nights with the father in one week, and one night in the other week, instead of one four-night block each alternate week. In their respective affidavits the parties present different perspectives about how the children have adapted to the new arrangement to spend time with the father, which has been in place now for almost eight weeks (as at the hearing of the stay application). It is not possible for findings to be made about this. The father has not demonstrated how the failure to stay this order renders his appeal nugatory. I do not accept any express or implied contention on his behalf that the existing order is any more, or less, in the best interests of the children, than the previous order. I accept the submissions made on behalf of the mother, and at least tacitly supported by the Independent Children’s Lawyer, that making yet another change in the children’s living arrangements is undesirable.
Order 7 provides for the children to spend half of the Terms 1, 2 and 3 school holiday periods with the father. The father’s proposal at final hearing was similar, proposing that the week‑about arrangement continue during the school holiday period. The arrangement for the children to spend half of each school holiday period with the father has been in place since 2022, pursuant to orders made on 7 June 2021. The rationale, or utility of a stay of this order is by no means apparent to the Court. Nothing was put to the Court to suggest that a failure to stay this order would render his appeal nugatory.
Order 8 provides for the children to spend half of the Christmas school holiday period with the father. This arrangement was set out in the orders made by consent on 7 June 2021 and the order proposed by the father at final hearing was identical in its terms. The Court simply repeats that it sees no utility in staying this order and does not consider that a failure to stay this order would render the father’s appeal nugatory.
Order 9 clarifies when each school holiday period commences and concludes and identifies the mid-point in the holiday period for changeover. The father’s proposed final orders were very similar in their terms, save that they only apply to the Christmas school holiday period. If Order 9 is stayed, Orders 5(c)-(f) of the orders made 7 June 2021 would be reinstated, which are almost identical in their terms to the final orders. There is no basis for the stay of this order.
Order 10 provides for the time the children are to spend with each party on special occasions such as Christmas, Mother’s and Father’s Day, Easter, the children’s birthdays and the parties’ birthdays. Again, Order 10 is almost identical in its terms to the father’s proposed final orders. The Court cannot understand why the father would seek to stay an order that benefits him, and again does not consider that declining to stay this order will render his appeal nugatory.
Order 11 provides for changeovers to occur at the children’s schools on school days. This order is consistent with both the father’s proposal at final hearing and the interim orders made by consent on 7 June 2021, which stipulate that the party with the care of the children shall collect or return the children to school at the commencement or conclusion of their time. The utility of staying this order is not apparent to the Court.
Order 12 provides for the father to collect the children from the mother’s home at the start of his time, and for the mother to collect the children from the father’s home at the conclusion of the father’s time, when changeovers do not occur at the children’s schools, as well as provisions governing the parties’ behaviour during changeover. Again, this is almost identical to the father’s proposal at final hearing, save for the provisions regarding the parties’ behaviour. If Order 12 were stayed, the arrangement in Order 5(b) made 7 June 2021 would be reinstated, being that the father shall collect and return the children to the mother’s home at the commencement and conclusion of his time. The Court does not see any utility in staying this order, and the father has not demonstrated how declining to stay this order would render his appeal nugatory.
Order 13 provides for the children to be at liberty to contact the party who they are not spending time with at all reasonable times, and for each party to facilitate this. This is identical in its terms to the father’s proposed final orders, as well as the interim orders made by consent on 7 June 2021. There is no apparent reason to stay this order.
Order 14 provides for the children to be given privacy when communicating with the other party. The Court repeats what it has said above at [32].
Order 15 provides for the party who does not have the children in their care to be at liberty to contact the children once every second day the children are in the care of the other party. In his Notice of Appeal, the father complained that the parties were not afforded procedural fairness because this order was not sought by any of the parties. A similar order was proposed by the father at final hearing, albeit without the limitation of contact being once every second day. Nevertheless, the order benefits both the children and the parties. In fact, the Court made this order to address the father’s concern in his affidavit filed 7 June 2024, that the mother had “unrestricted” Facetime access with the children while they were in his care. There is no equivalent pre-existing order. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that the order is not in the best interests of the children.
Order 16 restrains the father from causing the children, the mother and her residence to be under any form of surveillance. The father’s proposal to stay this order appears to have caused the mother “significant concern” (the mother’s affidavit, paragraph 6(l)). If this order were stayed, a similar but not identical order made 28 May 2020 would be reinstated. The difference is that order 16 proscribes surveillance of the children, as well as the mother. The basis of this order is found at [78]–[79], and [173] of my reasons. The father made a similar complaint regarding procedural fairness as above in his Notice of Appeal, as the parties only sought a restraint on the father surveilling the mother and her residence. In any event, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 17 restrains the mother from attending either of the children’s schools at any time proximate to the time when the children will go into, or are already in, the care of the father. The Court understands that the father does not appeal this order and does not seek that it be stayed, for the obvious reason that it benefits the children and the father. The Court simply makes this observation. Neither the parties, nor the Independent Children’s Lawyer, proposed this order at the final hearing. It is entirely an order of the Court’s own motion, considered to be in the best interests of the children. Curiously, many grounds of appeal are couched as denial of procedural fairness: 10(i)–(j), 12(a)–(e)15, 16, 22, and 31–33, which orders share the same genesis and rationale as Order 17.
Order 18 provides for common restraints, including the parties being restrained from physically disciplining the children, discussing the proceedings with the children or denigrating the other party. The father proposed similar orders at final hearing regarding denigration and physical discipline. If this order were stayed, the order would revert to Orders 8 and 9 made 7 June 2021 (regarding denigration) and Order 11 made 20 May 2020 (regarding non-denigration, discussing the proceedings with the children, causing them to be a medium between the parents, and not discussing major long-term issues with the children until a mutual decision has been reached between the parties). The latter orders are almost identical in their terms to the mother’s and Independent Children’s Lawyer’s proposals at final hearing. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 19 outlines the circumstances in which each party is permitted to travel overseas with the children. This order is almost identical in its terms to the order sought by the father at final hearing. If this order were to be stayed, it would revert to Order 14 made 7 June 2021, which is far less prescriptive. Again, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 20 stipulates that the mother shall retain the children’s passports unless they are travelling overseas with the father. While this is opposite to the father’s proposal at final hearing, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 21 stipulates that the parties shall do all acts and things and sign all documents necessary to renew each of the children’s passports not less than six months before the relevant date of expiry. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 22 stipulates that the parties shall pay equally all costs associated with the issue and renewal of a passport in the name of each child. In his Notice of Appeal the father complains that this order “is in the nature of a child support departure order”. In any event, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 23 directs the parties to keep each other advised of their residential and email addresses and telephone number, and any changes to the same. This is almost identical in its terms to the order proposed by the father at final hearing. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Orders 24–31 are miscellaneous orders providing for the parties to notify each other about any illnesses suffered by the children, the details of their medical practitioners, authority to communicate with the children’s schools and other organisations, permission to attend extra-curricular activities, and a direction to facilitate the children’s participation in extra-curricular activities. These orders are very similar in their terms to those proposed by the father at final hearing. Once again, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 32 appoints an Independent Children’s Lawyer for a period of 12 months to explain the final orders to the children and monitor and assist with the implementation of the final orders in a child-focused way. The Independent Children’s Lawyer proposed that order 32(d) be stayed such that she would not meet with the children pending determination of the appeal. Inferentially, the Court assumes she also or instead proposes a stay of Order 32(c). This is consistent with the father’s preference, with little opposition from the mother. It is a sensible, child focused concession, as would be expected from the Independent Children’s Lawyer. It makes sense, however, to include order 32(d) in the stay. As to the remainder of Order 32, nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 33 grants the Independent Children’s Lawyer leave to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the final parenting orders. This is a common procedural order and nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory, or that it is not in the best interests of the children.
Order 34 relates to the father’s property at Suburb F and provides for the mother to transfer her interest in the property to him. This was the father’s own proposal at the final hearing. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Order 35 is the order which enables the mother to discharge and refinance into her name the mortgage secured over the matrimonial home, and for the transfer of this property to her. The mother contends that she will be able to comply with this order, but only if the Court extends the time for compliance with this order by a further 30 days. That issue will be dealt with separately. The father contends that his appeal will be rendered nugatory if this order is not stayed. He further contends that the totality of the evidence before the Court at the final hearing, as well as the further evidence adduced by the mother in the course of the present application, will not satisfy the Court that the mother is, in fact, able to comply with this order either now, or at the later point in time proposed by her.
The mother contends that there is no need to stay Order 35 given her proposal for an injunction restraining her from selling, transferring mortgaging or in any way dealing with the property, other than in accordance with the final orders, or with the written consent of the father. She contends that once the property is transferred into her name, if the appeal is allowed in such a way that she cannot meet any monetary obligation to make a further payment to the father, the property can be sold, if that is the only remaining alternative. If she cannot transfer the property into her name within the required timeframe, the final orders will continue as intended, giving the father an opportunity to refinance the property into his name, and directing the parties to sell the property if neither of them are successful in discharging and refinancing the mortgage into their sole names. Thus, she contends, there is no prejudice to the father and allowing the transfer into her name, and his appeal is not rendered nugatory by the failure to stay the order.
Much attention was focused on the mother’s loan approval, and the circumstances which would enable her, in practical terms, to fulfil her obligation pursuant to Order 35. At paragraph 27 of the mother’s affidavit filed 6 September 2024, the mother states that she requires $1,262,000 to discharge the mortgage over the matrimonial home. She goes on to explain that she intends to finance this using an unconditional loan of $640,000, the funds she is entitled to pursuant to the final orders including $293,087 (the remaining balance of the Commonwealth Bank offset account) and $160,362 (a cash adjustment paid by the father to implement the final orders), as well as $167,532 borrowed from three friends. The Court notes the combined funds amount to $1,260,981 – $1,000 less than the amount required – but nothing turns on this. The subpoena material from the HH Bank (Exhibit A1) indicates that the mother has been approved for a loan of $640,000 with a repayment amount of $3,894.92 per month. Her assets as listed in the loan documents amount to $4,315,162 (including existing property values at $3.1 million) and her liabilities amount to $1,297,416 (including an existing mortgage). The mother’s HH Bank loan application (Exhibit A4) indicates that the mother has funds available to her in the form of savings of $733,162. The Court is unclear how this figure is arrived at, but this is more than the amount needed (on top of the loan) to discharge the mortgage in any event.
The totality of the evidence satisfies the Court that a combination of the finance approved through the HH Bank, and the various other financial resources available to the mother, will enable her to discharge and refinance the existing mortgage into her sole name.
The father contended that the Court would not be satisfied that the mother has the capacity to repay the loans. The Court observes that the mother’s lenders were obviously satisfied about her capacity to make loan repayments, otherwise they would not have approved or advanced the loans. The father’s contention is rejected.
The present issue for the Court is whether the father’s appeal as it relates to property orders will be rendered nugatory if the stay is not granted. In Kelly and Kelly (1981) FLC 91-007 at 76,105 the Full Court discussed the concept of nugatory in terms of whether it would be “impossible or impractical to restore the previously existing situation if the appeal were successful”. In other words, in the present case, if the mother succeeds in refinancing the loan, and transfers the property into her name pursuant to Order 35, can the ownership of the property be caused to revert to the father, or the property be sold? The Court concludes that by Court order, either by the Full Court or on a rehearing, the property could revert to the father or be sold. Thus, the father’s appeal is not rendered nugatory if the stay is not granted.
Orders 36–41 are orders which simply implement Order 35 and provide a mechanism for the matrimonial home to be dealt with if Order 35 cannot be complied with. Given the Court’s conclusion about Order 35, the father’s appeal is not rendered nugatory if the stay is not granted. It is curious that the father would seek to stay orders made to benefit him in the event that the mother is not able to comply with Order 35, whether the time period is extended or not. Moreover, a stay of Order 40, which provides the mechanism for compliance with the father’s obligations under the orders made on 1 July 2019, would simply result in the orders of 1 July 2019 continuing to apply.

Orders 42 and 43 are common orders declaring that each party retain all other property not previously referred to in the orders, in their ownership or control. Their terms are identical to those sought by the father at final hearing. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Order 44 stipulates that each party is solely liable for any of their own capital gains tax. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Order 45 is a standard s 106A order. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Order 46 is a common form of “leave to relist order” in relation to any issues that arise about the interpretation, implementation and/or enforcement of the property orders. The oral application made by senior counsel for the mother to extend the time to comply with Order 35 by a further 30 days is an issue about the implementation of the orders. The order benefits both parties. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Order 47 provides that any future application by either party is to be first listed before me, if I am reasonably available, subject to any recusal application. Nothing put to the Court on behalf of the father demonstrates that the failure to stay this order would render his appeal nugatory.
Subject to the discussion that follows, the father has not satisfied the Court either that the stay he seeks is necessary or appropriate, or that the failure to stay the orders would render his appeal nugatory. On this ground alone, his Application in a Proceeding filed 21 August 2024 should be dismissed, save for the sensible concession made by the Independent Children’s Lawyer as to a stay of Order 32(c), and consequently, Order 32(d).
DISCRETIONARY MATTERS
Senior counsel for both parties made submissions about discretionary matters that would inform the granting or otherwise of a stay of orders.
Senior counsel for the father submitted that an exercise of discretion in granting the stay of orders as proposed by him would be informed by the further evidence of the father in his affidavit of 18 September 2024 and the documents tendered in his case.
The Court disagrees. The essence of this material, amongst other things, seeks to assert issues of non-disclosure and non-compliance with orders by the mother, and invites the Court to make findings or to draw inferences from asserted behaviour of the children and the mother contrary to findings made at the final hearing including of the father’s coercion and control. Neither findings, nor the drawing of adverse inferences, are possible with this untested material. All the relevant assertions are contested by the mother who, in any event, has had no opportunity to respond to some of them. Senior counsel for the father quite properly acknowledged in submissions, albeit in a specific context, that “it may well be all of this can be explained, or some of it can be explained” (Transcript 19 September 2024, p.17 lines 44–45). The reality is that the mother does offer some explanation and has been denied the opportunity to provide more fulsome explanation, by the father’s late-filed affidavit. Moreover, as submitted by senior counsel for the mother, the differences between the father’s affidavits of 21 August 2024, and 18 September 2024, raise issues about why certain issues were not raised in that first affidavit. The material relied on by the father does not inform an exercise of discretion in his favour.
Senior counsel for the mother submitted that the material relied on by the father was irrelevant to the issue of the stay of orders and was an exercise by the father to gather evidence in support of his foreshadowed application to adduce further evidence in the appeal. Moreover, it was a part of a pattern of conduct by the father to delay and prolong the conflict and litigation.
The Court agrees. The material adduced by the father was largely irrelevant to the stay application. The contention that the father was gathering evidence to use in his foreshadowed application to adduce further evidence in the appeal is, given the history of this litigation and my long involvement in it, plausible. Moreover, the contention of this exemplifying the father’s pattern of control is entirely consistent with my findings and particularly the subtle nature of such control (see [79] and [197] of my reasons).
The Court notes that no submission was expressly made that the father’s actions were an abuse of process, though it might be inferred.
Nonetheless, the Court concludes, none of the material referred to by the father influences the exercise of the Court’s discretion in relation to the appeal either to grant or decline the same. The decision will be made by reference to the principles identified above, particularly by the absence of any plausible argument that the father’s appeal will be rendered nugatory by the denial of the stay he seeks.
THE APPLICATION FOR AN EXTENSION OF TIME
During the interim hearing on 19 September 2024, senior counsel for the mother made an oral application for an extension of 30 days to comply with Order 35 of the final orders, which gave the mother 60 days from the date of those orders to discharge and refinance the mortgage over the matrimonial home into her sole name. The present issue is whether the time provision in Order 35 is a mere machinery provision (which is capable of subsequent amendment) or a substantive provision (in which case I am functus and cannot vary this order).
The most recent authority on this issue is the Full Court decision of Goldsmith & Stinson(No 2) (2023) FLC 94-134 in which their Honour’s canvassed the relevant authorities and determined at [92], in the context of that case, that “the 60 day timeframes may be consequential or machinery provisions, capable of subsequent amendment”. Consideration was given to the primary judge’s reasons for judgment which referred to the Court’s intention for the husband to retain certain properties to better achieve the aims of the Act to finalise the parties’ financial relationship and avoid the prospect of further litigation or dispute (in circumstances where there was some prospect of him being able to borrow sufficient funds to do so), as well as the specific reservation of liberty to apply in relation to the “implementation” of the final order.
In my reasons at [271], while I found that “on her own evidence she is unable to afford refinancing the Suburb H property into her sole name”, I did not entirely rule this out as a possibility and expressed that the mother should be given the opportunity to retain the matrimonial home within a reasonable timeframe. The Court also found that “it may be possible” for the father to refinance the matrimonial home into his own name and that he should be given the opportunity to retain the matrimonial home if the mother was unable to acquire his interest in the property within a reasonable time ([274] of my reasons). The Court noted that if the mother was unable to afford to retain the matrimonial home, it would be a “significant change in circumstances” for the children and “may also create some practical difficulty for children to spend time with both parties” ([155] of my reasons). It also noted that the children would be provided with some stability if they were able to continue to live in the matrimonial home, albeit in the context of the father being given the opportunity to retain the property ([274] of my reasons). An order was also made for the parties to be granted leave to “apply to relist the proceedings on 14 days’ notice to deal with the interpretation, implementation and/or enforcement of the property orders”.
The request for an extension of time was not explicitly opposed.
The Court finds that the 60-day timeframe in Order 35 is a consequential or machinery provision which is capable of subsequent amendment. The Court has already found that the evidence shows the mother can comply with Order 35 if she is granted an extension. The Court thus grants the mother’s oral application to extend her time by 30 days for compliance with Order 35. It must logically follow that the time periods in Orders 34, 36 and 37 must likewise be extended.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 26 September 2024
SCHEDULE ONE
THE COURT ORDERS THAT:
1. All previous orders are discharged.
2. The Respondent Father’s (“the father”) Application in a Proceeding filed 7 June 2024 be dismissed.

PARENTING
Parental responsibility
3. The Applicant Mother (“the mother”) have sole parental responsibility for X born in 2015 and Y born in 2017 (“the children”).
4. Other than in the case of a medical emergency, in the event a decision is required as to major long-term issues concerning either or both of the children, the mother shall:
(a) Advise the father in writing as soon as possible of the decision intended to be made as well as notice of any date by which the decision is to be made;
(b) Seek the father’s written response in relation to the decision, which is to be provided within seven days (or as soon as reasonably practicable if the decision is required urgently);
(c) Consider by reference to the best interests of the children any such response prior to the making of any such decision; and
(d) Advise the father in writing of her decision no later than 48 hours after the decision has been made.

Live with and spend time with
5. The children shall live with the mother.
6. The children shall spend time with the father during school terms each alternate week from 3.00 pm or the conclusion of school on Thursday to 9.00 am or the commencement of school on Monday.
7. The children shall spend time with the father during the Terms 1, 2 and 3 school holidays for one half of the school holiday period as agreed between the parties, or in the absence of agreement, for the first half of each school holiday period in even years and for the second half of each school holiday period in odd years.
8. The children shall spend time with the father during the Christmas school holiday period as agreed between the parties, or in the absence of agreement, for the first half of the school holiday period in even numbered years and for the second half of the school holiday period in odd numbered years.
9. For the purpose of the school holidays as referred to in Orders 7 and 8, the following will apply:
(a) Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the children and shall conclude at the commencement of school on the first day of required school attendance of the children;
(b) Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days; and (c) In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.

10. Notwithstanding any other orders:
(a) The children shall spend time with the father from 8.30 am on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day in even numbered years.
(b) The children shall spend time with the mother from 8.30 am on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day in odd numbered years.
(c) In the event that the children are not already in the care of the mother on Mother’s Day, then the children shall spend time with the mother from 8.30 am until 6.00 pm on Mother’s Day.
(d) In the event that the children are not already in the care of the father on Father’s Day, then the children shall spend time with the father from 8.30 am until 6.00 pm on Father’s Day.
(e) The children shall spend time with the mother from 8.30 am on Good Friday until 2.00 pm on Easter Saturday in odd numbered years and from 2.00 pm on Easter Saturday until 5.00 pm on Easter Monday in even numbered years.
(f) The children shall spend time with the father from 8.30 am on Good Friday until 2.00 pm on Easter Saturday in even numbered years and from 2.00 pm on Easter Saturday until 5.00 pm on Easter Monday in odd numbered years.
(g) The children shall spend time with the father on their birthdays if they are not already in his care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(h) The children shall spend time with the mother on their birthdays if they are not already in her care from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(i) The children shall spend time with the father on his birthday if they are not already in his care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(j) The children shall spend time with the mother on her birthday if they are not already in her care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.

Changeover
11. Changeovers shall occur at the children’s school/s on school days.
12. Changeovers that do not occur at the children’s school/s shall occur as agreed between the parties and failing agreement the father shall collect the children from the mother’s home at the commencement of their time with him and the mother shall collect the children from the father’s home at the conclusion of that time, and both parties shall ensure that during changeovers:
(a) Neither party will enter the other’s home;
(b) Each party will behave in a civil and courteous manner to the other party and any other person who may be present;

(c) Each party will conduct themselves in a child focused manner;
(d) Each party will limit their conversation to matters that specifically pertain to immediate matters of the children passing from one party’s care to the other; and (e) Neither party will discuss issues of any controversy between them.

Communication
13. The children are at liberty to contact the other party at all reasonable times and both parties shall ensure that if one or both of the children wish to communicate with the other party that they are given access to a phone or electronic device to allow such communication to occur.
14. The children will be given privacy to communicate with the other party and the communications will not be monitored.
15. The party who does not have the children in their care is at liberty to contact the children once every second day the children are in the care of the other party, either by phone or electronic message/video and the party with the care of the children shall not block such communications.

Restraints
16. The father is restrained from causing (either directly or via any agent or third party, including, without limitation, any private investigator or other surveillance provider) the children, the mother and her residence, to be under any form of surveillance.
17. The mother is restrained from attending either of the children’s schools at any time proximate to the time when the children will go into, or are already in, the care of the father pursuant to these orders.

18. Both parties are additionally restrained from:
(a) Physically disciplining the children or permitting any other person to do so;
(b) Questioning or interrogating the children about the time they have spent with the other party and each party shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
(c) Denigrating the other party, the other party’s extended family, or a person with whom the other party has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other party, the other party’s extended family, or person with whom the other party is in a relationship, with the party’s knowledge or in their presence;
(d) Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(e) Permitting the children having access to any of the documents filed in these proceedings;
(f) Communicating any information intended for the other party through the children; and
(g) Causing the children to be a medium in any way between the parties or between the parties and any other person.

Travel
19. Either party is permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel subject to the following:
(a) The travelling party provide the non-travelling party no less than 60 days written notice prior to the proposed travel, including dates of departure from and return to Australia;
(b) The travelling party provide the non-travelling party with the following details 30 days before the date of departure:
(i) A copy of the itinerary provided by a travel agent or airline;
(ii) Accommodation details and copies of any bookings for accommodation including the names, addresses, telephone and email contact details of where and with whom the children will be staying;

(iii) Contact details for the travelling party whilst they are away; and
(iv) A copy of the children’s travel insurance certificates, which include, as a minimum, hospital and emergency medical cover, being private insurance apart from free public health care provided in the relevant country.

(c) In the event that overseas travel proposed by the travelling party falls within that party’s time and does not impact the non-travelling party’s time, consent is not required, but in the event that overseas travel proposed will impact upon the non-travelling party’s time, then written consent of the non-travelling party is required and such consent shall not be reasonably withheld;
(d) The travelling party will confirm a contact phone number for the purpose of the non-travelling party having phone or video messaging (such as Skype, FaceTime or WhatsApp communication) with the children while they are away; and (e) In the event that the travelling party’s overseas travel falls during the non-travelling party’s time with the children, the non-travelling party shall have make-up time for the equivalent period, as agreed between the parties in writing.

20. The children’s passports shall be retained by the mother except for any time that the father is travelling overseas with the children in which case the mother shall provide the children’s passports to the father for the time they are travelling overseas with him.
21. The parties shall do all acts and things and sign all documents necessary to renew each of the children’s passports not less than six months before the relevant date of expiry.
22. The parties shall pay equally all costs associated with the issue and renewal of a passport in the name of each child.

Miscellaneous
23.Both parties shall keep the other advised at all times of their residential and email addresses and contact telephone number and shall advise the other party within 48 hours of any change to either their residential and email addresses and telephone contact number.

24. Notwithstanding Orders 3–4, both parties are at liberty to take the children to a GP for any routine check-ups and ordinary attendances, or in the case of any emergency, without requiring the consent of the other party.
25. Each party shall keep the other advised of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
26. Each party shall notify the other within 24 hours if either or both of the children develop any illness or medical condition, any absences from school of more than one day, or the details of any attendances with any medical or healthcare practitioner, including the name and address of such practitioner.
27. Each party shall provide all authorities necessary to any medical practitioner or health professional to enable that medical practitioner or health professional to release to both parties any information or documents in relation to the children’s treatment, assessment results and other matters concerning the children’s health.
28. Each party shall notify the other if they are contacted by the children’s school/s regarding any matter and requested to collect the children due to illness or any other matter.
29. Each party shall be permitted to communicate directly with the children’s school/s, sporting bodies, and extra-curricular organisations to obtain any necessary information and/or documents about the children’s progress and this order shall constitute sufficient authority for such communication.
30. Without detracting from the restraint imposed on the mother by Order 17, each party is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
31. Each party shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
32. Pursuant to s 68L(2) of the Family Law Act 1975, X born in 2015 and Y born in 2017 be independently represented for a period of 12 months AND IT IS REQUESTED that the Legal Aid Commission of NSW arrange such independent representation and:
(a) Forthwith upon appointment by the Legal Aid Commission of NSW, the Independent Children’s Lawyer file a notice of address for service;
(b) Within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of these orders and these reasons for judgment dated 26 July 2024; and
(c) The Independent Children’s Lawyer meet with the children to explain these orders; and
(d) For a period of 12 months, the Independent Children’s Lawyer monitor and assist with the implementation of these orders in a child focused way.

33.Leave is granted to the Independent Children’s Lawyer to apply to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the parenting orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a) Forthwith notify all other parties of the intention to make the request and the reason for same;
(b) Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c) Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

PROPERTY
34. Within 60 days of the date of these orders, the parties shall sign all documents and do all things and provide all PEXA identification and authority requirements necessary to transfer from the mother to the father her right, title and interest in the property located at E Street, Suburb F NSW (“the Suburb F property”).
35. Within 60 days of the date of these orders, the mother shall do all things necessary to discharge and refinance into her sole name the mortgage secured by the Commonwealth Bank of Australia (“CBA”) over the property located at G Street, Suburb H NSW (“the Suburb H property) (“the mortgage”), and for this purpose:
(a) The balance available in the CBA Offset Account #…99 (“the CBA Offset Account”) as at the date of these orders is to be forthwith retained by the mother;
(b) The father is to pay the mother a cash sum of $160,362.41 in order to implement a 55:45 division of property in favour of the father; and
(c) If Orders 35(a) and (b) above are not sufficient for the mother to be able to discharge and refinance the mortgage into her sole name, the mother shall do all things necessary to obtain a loan to facilitate the implementation of this order.

36. If the mother is successful in discharging and refinancing the mortgage into her sole name within 60 days of the date of these orders, the parties shall do all acts and things necessary to sign all documents and do all things and provide all PEXA identification authority requirements necessary to transfer from the father to the mother his right, title and interest in the Suburb H property.
37. If the mother is unsuccessful in discharging and refinancing the mortgage into her sole name within 60 days of the date of these orders, the father shall have 60 days from the date he is informed by the mother that she is unable to discharge and refinance the mortgage, or on the expiry of time in Order 35 (whichever is sooner), to discharge and refinance the mortgage into his sole name.
38. If the father is able to discharge and refinance the mortgage into his sole name within the time stipulated in these orders, he shall pay the mother a further cash sum of $1,350,388 to implement the 55:45 division of property.
39. Should both parties be unable discharge and refinance the mortgage into their sole names within the time stipulated in these orders the parties shall do all things necessary and sign all documents necessary to place the Suburb H property on the market to be sold and the following shall apply:
(a) The father shall nominate three real estate agents local to the Suburb H area and within seven days thereafter the mother shall pick one to be retained to sell the Suburb H property;
(b) The list price of the property shall be such amount as agreed between the parties and failing agreement within 14 days of the date of appointment of the real estate agent the list price will be as nominated by the real estate agent;
(c) The sale price of the property shall be such amount as agreed between the parties and failing agreement any offer to buy the property that is at least 80 per cent of the list price shall be accepted by the parties as the sale price;
(d) The parties shall cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making a key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e) Upon agreement being reached for the sale of the property, the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(f) The contract of sale shall provide for completion within 30 days of the date of the contract;
(g) The proceeds of sale of the property shall be paid in the following manner and priority:
(i) To discharge the mortgage secured by the CBA over the Suburb H property;
(ii) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii) Payment of the legal costs and outlays relating to the sale; and (iv) The balance to be distributed to the mother, such that she receives 45 per cent of the net asset pool, with the remainder to be distributed to the father.

40. Pending Orders 35 to 39, the direct debits drawn from the CBA Offset Account pursuant to the orders made on 1 July 2019 shall continue.
41. Upon compliance with Orders 35 to 39 and settlement of the transfer or sale of the Suburb H property, Order 40 shall be discharged and the mother shall retain the balance of the funds in the CBA Offset Account in accordance with Order 35(a).
42. Subject to the preceding orders, the father be declared to have the sole right, title and interest in:
(a) All bank accounts and credit cards in his sole name;
(b) His interests in J Pty Ltd, Pickford Holdings Limited, Pickford Family Trust, K Pty Ltd, K Trust and Pickford (No 2) Family Trust;
(c) Any chattels, goods, furnishing and other property which are at the date hereof in his possession;

(d) All motor vehicles registered in his name; and
(e) Any monies, debentures, shares, superannuation entitlements, rollover funds or insurance policies which stand in his sole name respectively at the date hereof.

43. Subject to the preceding orders, the mother be declared to have the sole right, title and interest in:
(a) All bank accounts and credit cards in her sole name;
(b) Any chattels, goods, furnishing and other property which are at the date hereof in her possession;
(c) All motor vehicles registered in her name; and (d) Any monies, debentures, shares, superannuation entitlements, rollover funds or insurance policies which stand in her sole name respectively at the date hereof.

44. Each party is solely liable for their own capital gains tax liability (if any) and in that regard shall pay, at any time each may be assessed to pay in the future, such capital gains tax liability as might arise from any asset already owned by a party individually, or of which a party is to be sole owner pursuant to the terms of these orders.
45. In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s 106A, a registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
46. Leave is granted to the parties to apply to relist the proceedings on 14 days’ notice to deal with the interpretation, implementation and/or enforcement of the property orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a) Forthwith notify all other parties of the intention to make the request and the reason for same;
(b) Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and (c) Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

47. Any future application that may be filed by either party is to first be listed before Justice Altobelli if his Honour is reasonably available, subject to any recusal application.

THE COURT NOTES THAT:
A. An Independent Children’s Lawyer has been appointed for the following reasons:
a. To meet with the children and explain these orders to them;
b. To assist with the implementation of these orders in a child focused way; and c. To monitor the implementation of these orders.

B. The Legal Aid Commission of NSW has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.

SCHEDULE TWO
1. His Honour erred [at 53-56 and elsewhere] in finding that the husband had been financially controlling and thus had committed family violence in that:
(a) His Honour erred and misdirected himself as to the law and what would or could, in the circumstances, constitute being “financially controlling” and erred by finding [at 56] that “The court agrees with the mother’s submissions that these two incidences constitute financial control” when they could not be. And further erred in finding [at 56] “That is, there was no compelling reason for the father to oppose the mother’s request for a partial property settlement…”
(b) His Honour erred [at 56 and elsewhere] by finding specifically that, in the circumstances of this matter, the husband was financially abusive by not consenting to two interim applications for partial property orders being those made on 29 July 2019 and on 4 March 2024 and in this respect:
(i) His Honour erred, inter alia, by making findings as against the husband in circumstances where the husband was not cross-examined upon these issues and his Honour’s findings are procedurally unfair
(ii) The Wife’s Application for partial property settlement was in fact filed 23 July 2019 via an Amended Application, six days prior to the first interim hearing, which was only listed for interim spouse maintenance and parenting and where the Affidavits had already been filed, with neither party addressing partial property. The Wife’s application was made without any notice or attempt to secure agreement directly from the husband prior to filing so the first time it arose was 23 July 2019.
(iii) The Husband appropriately instructed his lawyers that he agreed to the Wife receiving funds for her legal fees and that was put in his Case Outline filed two days later on 25 June 2019 (where the Husband noted the application was not before the Court) but it was appropriate she received funds and in the submissions provided to Senior Registrar Campbell. The husband did not oppose the release at any time. These could have been tendered to the Court had the husband been cross examined on this or there been any suggestion from the Court that the initial partial property settlement was considered controlling.
(iv) His Honour incorrectly finds that it was settled by consent with each party receiving $100,000 when in fact it was the wife who received $100,000 and the husband received nothing.
(v) His Honour ignores entirely the evidence that is before him that at the time of separation, 7 November 2018, the wife removed $50,000 from the offset account which was in her sole name and to which she had suspended the husband’s access. She notified the husband of this a week later via lawyers and the husband agreed to her retaining it and proposed he receive $50,000 (and it will be noted that at this time, his income had all been put into the offset account and he had no access to funds).
It was not an example of the husband being financially controlling, but quite the opposite.

(vi) As to the application filed 4 March 2024, the Wife had sought $80,000
as a partial property settlement and in the accompanying Affidavit, referred to the need to repay loans that had not only not been disclosed previously but predated the partial property settlement consented to in January 2024. His Honour refers to them not being disclosed but fails to refer to the fact that the Wife in her own Financial Statement accompanying the Application (which for some reason is not on the list of documents) did not disclose any of the loans sought to be repaid.
(vii) The husband did not oppose the release of funds as a blanket but identified the payments that the wife referred to and proposed the release of those funds to meet her payments in the sum of $42,000.
(viii) In referring to the Husband’s position in his response, His Honour ignores that the husband had agreed to the release to the Wife of $100,000 as a partial property settlement only weeks early with Consent Orders made on 12 January 2024. That was agreed to by the Husband after the Wife’s Counsel made an oral application after 4pm on 9 January 2024 (the 11th day of the hearing) without any notice or documents. The wife’s Counsel’s submissions referred to those funds being used to meet future legal fees. The submission made was “I’m instructed to make an oral application that there be an advance of some moneys to the mother for legal fees to come” (p502, line25 on). The wife’s lawyers also confirmed via email that the $100,000 was to meet legal fees already incurred and pay Dr C costs.
At that time, the matter was being adjourned for a final day to 2 February 2024.
The husband agreed to the further $100,000 to the Wife and the Consent Orders were drafted by the husband’s lawyer and filed with the Court.
Approximately 3 weeks later on 2 February 2024, the wife’s Counsel made a further application for a partial property settlement again orally and without documents. The third application was made at 3.00 pm on 2 February 2024 at around 3.00 pm when Ms Pickford’s Counsel said “We haven’t finished yet, your Honour. I have been asked to make a certain application. I am asked to make an oral application in relation to the mother seeks more moneys coming out of the controlled moneys account – I keep referring to it as the controlled moneys – out of the offset account on the basis that it will be added back into the account for the purposes of legal fees. And I have been asked to ask for an amount of $80,000. I don’t – I’m just waiting to see what the balance of that offset account currently is.”
It was only after the Wife filed her Application, Affidavit and Financial Statement that the position was put forward and the $80,000 was to meet past legal fees (despite the Wife’s Counsel’s assertion on 9 Jan 2024 that the $100,000 was to meet future fees), loans that had not been in any material filed or disclosed and there was a shortfall generally of $18,000 even if the husband accepted the loans. This was particularly where the Wife’s own previous concession was that her Financial Statement wrongly set out the expenses she met, yet she filed a second one with the same incorrect information (ie, the significant expenses she claimed to pay but which she knew came out of the offset).
The husband did not oppose it but instead put forward a response based on the Wife’s material.
(ix) His Honour erred by misapplying the law applicable to the determination of such applications, and misconstrued the evidence, and by failing to take account of the circumstances of such applications which had been fully set out in the affidavit of the husband filed 7 March 2024 and failing to (again) require of the wife that she comply with her obligations of full and frank disclosure. In short, his Honour treated the husband’s qualified objections as an irritant but did not apply any rigour to the wife’s tardiness or non-compliance and thereafter held those views against the husband in the determination of the matter contrary to the children’s best interests and in failing to determine them according to law.
(x) His Honour erred in failing to take account in the consideration of whether the husband had been financially abusive, the nature and scope of payments that he consented to being made from the CBA Offset account including especially those over and above the terms of the Orders made, including the payment of the wife’s personal credit card from 1 July 2019 and note that even in relation to expenses paid pursuant to a consent order made 1 July 2019 (the first date the matter was before a Court) certain payments particularised within Order 4 require agreement. His Honour did not have a single instance of the husband querying a payment by the wife made from the offset and in fact was tendered documents showing the husband agreed. The first and only objection to a payment from the offset account came in April 2023 and the wife did not (as was suggested by her Counsel) say she was in financial difficulty but in fact agreed to and did pay her half share and in this respect his Honours finding [at 61] that the mother “acquiesced” mistakes the evidence and is wrong.

(xi) Further, his Honour fails to examine the wife’s financial circumstances at the relevant time.
(xii) His Honours’ findings as to this issue permeated impermissibly throughout the reasons for Judgment in a critical manner adverse to the husband, including those as to the number of nights that the children spend with the father [at 197] and as to the allocation of parental responsibility.

(c) His Honour [at 54] did not accept that the father was financially controlling “during the relationship” but erred in failing to make a finding that during that period he was not. Such a finding, if made, would speak to whether or not the husband had a history of financial abuse which he did not. There is not a single incident that the wife referred to specifically of financial control and not only did the wife concede the husband kept her informed of financial transactions, but also the offset account and linked credit card was in her sole name and she was the primary account holder. The wife controlled the husband’s access to the statements and the funds and the last disclosure made was October 2023 for the offset account.
(d) His Honour again elevated, wrongly, the mothers alleged experience of the father [at 54] without making findings as to what that was consisted by and this,
along with other similar “findings” of the mother’s “experience” infected the judgment and the reasoning process.
(e) Further, his Honour overlooks in this regard the husbands unchallenged evidence that the wife, on 7 November 2018, took $50,00 from the offset account of which she had sole control to pay her lawyers which payment was then unknown by the husband (H# ...68 aff 2.2.2023).
(f) His Honour erred [at 53] in saying that “the father in his written submissions drew attention to the fact that the mother had access to the Commonwealth Bank of Australia offset account.”, which comment was taken out of context. The wife was in fact the only one who had access to the account but the evidence clearly showed that the CBA was held solely in her name, rather than one of which the control could be determined arbitrarily by the father (see findings at #236) or at all. The husband in fact had no access to the account at all, with the wife suspending even his viewing access of the account and cancelling his credit card.
(g) His Honour erred [at 55] in finding that the father’s denial (of being financially controlling) was based upon a “false binary” as to which his Honour does not indicate what the binary factors both are and as to which his Honours indication that, “In some cases, even the provision of generous financial support can, of and in context, be controlling”, does not assist.
(h) His Honour erred by mistaking the case of the husband as to the provision of financial support provided.
(i) His Honour failed to here take account of the finding [at 246] that, “In late June 2019, the mother cancelled the direct debit from the CBA offset account for the payment of the rates for the Cronulla property, without notice or discussion with the father”.
(j) His Honour also failed to engage with the husband’s unchallenged evidence that the wife had also, on 7 November 2018, cut the husband’s access to the Commonwealth Bank Credit card, leaving him without access to joint funds It was the wife who was financially controlling by cutting off his access to the joint funds.
(k) His Honour erred [at 58-61] in finding that in relation to one (1) contended refusal by the husband, after about 4 years, to extend the meaning of what was to come out of the offset account could, as his Honour finds, at 61, have been unreasonable or failing to consider what had been paid, what the wife was earning and what she had wrongly claimed in her financial circumstances in respect of which she had to concede that claimed expenses by her of about $2,200 per week were not actually paid by her. His Honour failed to consider the numerous additional payments made or agreed to by the husband without requiring written agreement as the orders required.
(l) His Honour ignored that after the ICL relisted the matter in December 2023 due to a dispute about payments for Dr C, the Husband agreed to pay the wife’s share at first instance. His Honour erred in his orders by not including a provision for a repayment of part to the husband.

2. His Honour erred in relation to the issue of family violence as to physical abuse in that:
(a) Rather than finding merely that “based on the outcome of those criminal proceedings and the evidence before it, that the mother has been subject to physical abuse by the father” [at 51] his Honour should have rather found that she had not been the subject of that form of abuse, and (b) Further his Honour elevated, wrongly, the mother’s alleged experience to a finding, without actually making findings of fact, [at 51 and elsewhere] which wrongly, along with other matters, infected the judgment and the reasoning process.
(b) Further his Honour elevated, wrongly, the mother’s alleged experience to a finding, without actually making findings of fact, [at 51 and elsewhere] which wrongly, along with other matters, infected the judgment and the reasoning process.
(c) His Honour mistakes the evidence as to the findings of the learned Magistrate in the Local Court proceedings for assault (dismissed at a prima facie level) and the dismissal of the ADVO – [transcript at GP #25 of H 2/2/2023] yet is critical of the husband (who has acknowledged the incident did neither party any credit)
and in no way seeks to be critical of the wife

3. His Honour erred in relation to the issue of family violence and as to emotional abuse in that:
(a) His Honour [at 52] found that, “The Court cannot find, based upon the mother’s vague assertions and the limited evidence before it, that the father had been emotionally abusive”, rather than making a finding that he had not been.
(b) Further, as to this his Honour again elevated, wrongly, the mother’s alleged experience to a finding, without actually making findings of fact [at 52 and elsewhere] which wrongly, along with other matters, infected the judgment and the reasoning process.

4. His Honour failed to appreciate the case of the husband, and the evidence and submissions that whilst the wife had been guilty of conduct towards the husband that constituted family violence (for instance by the constant derogatory taunts in emails and texts to the husband and others about him) he was able, in the interests of the children to put those aside, whereas the Court placed significant weight on the alleged misgivings of the husband and little or none on those of the wife, His Honour failed to approach the wife’s actions in the same way as he did those of the husband leading to a systematic bias within the judgment.
5. His Honour erred in finding that there had been an historical (or unreasonable) refusal by the father to consent to the children attending appropriate health providers [at 89- 93
& 203 and elsewhere] and failed to consider the evidence (and submissions) relevant to that issue including the evidence given by the Single Expert that the fathers’ response to the requests that X see a psychologist was a “measured and appropriate response” [T 524 2.2.24] and otherwise His Honour deals with the evidence in an entirely selective way thereby mistaking it. His Honour had before him (in R#23) the correspondence from the Husband’s lawyers inviting the wife to select a GP that they could both attend upon for the children (instead of different ones as the wife had been doing) and the Husband also proposed the parties attend upon a paediatrician. Significantly, that was never replied to by the wife or her legal representatives.
6. Honour failed to adopt the “preferred approach” of considering each of the matters set out in s60CC and making findings in relation to each and considering weighing and assessing the evidence touching upon each of the relevant matters adduced on behalf of the parties and indicating which of those matters should attract greater or lesser significance and how those matters balance out in coming to a decision thereby failing to provide adequate reasons for his decisions and leaving a reader of the judgment unable to discern the pathway to the result.
7.His Honour erred in ordering that the children continue to live (primarily) with the mother, and spend time with the father on alternate weekends and half school holidays “To reduce conflict between the parties” [at 196] without indicating how that was so. The special occasion orders alone are problematic with the Court having varied changeover times from those in place (and as sought by the parties) without explanation.
8.In the determination of the issue of parental responsibility his Honour erred by
(a) Placing too much weight upon the report of Dr C [at 192] when he had not seen the parties in about 4 years and when he did so he had sought to address those matters which were then important upon presentation of the matter or in failing to actually indicate what weight various aspects were afforded.
(b) By failing to properly weigh and assess the risks of such an order prospectively as outlined by the husband in his case, and
(c) By failing to give proper reasons for that decision [see 193].
(d) By ignoring the evidence and finding [at 146] that, in all likelihood “the mother views her role as primary carer as elevating her decision-making power and that she may be threatened by the father’s attempts to accede his own power in this regard ....” and the implications arising.

9. That His Honour erred in mistaking the evidence in coming to a number of findings which error infected the judgment impermissibly and in a number of cases relied upon the erroneous submissions of the wife’s Counsel and the wife.
10. His Honour erred in the fining [at 197] as it affected the decision as to the time that the children spent with the father by allowing his Honours (contended erroneous) findings as to the impact of not agreeing to two interim or partial property applications rationally affect how the husband deals with the children in an emotional sense.
11. His Honour failed to afford the parties procedural fairness by and erred by appointing an ICL to explain the orders to the children without first indicating an intention to consider that course of action and calling for submissions or evidence upon the issue.
12. His Honour failed in relation to properly considering the impact of the mother being granted sole parental responsibility including as to the effect of such order and the utility of the orders as to the limited consultation with the father and given other evidence within the matter as to the mother failing to do so or misleading.
13. His Honour erred in finding [at 136 and elsewhere] that the mother felt coerced and controlled by the father without making findings as to what she felt coerced and controlled by and in the circumstances whether any such feelings were reasonable or considering conversely whether such findings constituted a parenting deficit such that needed to be accounted for in orders made.
14. In relation to the issue of the orders sought by the husband as to the injunctions concerning Mr B his Honour erred in that:
(a) His Honour failed to find on balance of probabilities that Mr B slapped X in the course of disciplining him, rather than it being “a plausible hypothesis” [172], given especially the evidence of the maternal uncle, Mr R [referred to at 171].
(b) Erred in failing to find that the mother refused to accept the probability of Mr B disciplining Ethan and then to weigh any risks consequent upon that finding.
(c) Failed to consider the mother’s evidence in cross-examination as to the reasonableness of the husband’s concerns if that event took place – to the effect that if those were the reports made to the husband as to that event his concerns would be reasonable [T15.2.2023 P118.19].
(d) Failed to find that the circumstances of the mother admitting an involvement of Mr B in disciplining and laying on X’s bed with him created circumstances which the mother perpetuated because she knew it would be of concern to the father (together with his family and the family of the mother) and wished to “push back”.
(e) Erred in failing to find that the mother was (again) unable to separate her own interests from those of the children in that important respect as an issue concerning parenting capacity.
(f) Erred in finding that “to grant the injunction proposed by the father would to sanction and endorse his behaviour that seeks to coerce and control how the mother lives her life after the conclusion of this litigation” [at 175] and in failing to consider the benefits thereof of such injunction and the various basis upon which injunctive orders could be made.
(g) Erred in finding that the husband, in seeking the injunctive orders, was attempting in some way to control the wife.
(h) Erred as to the evidence given by Dr C generally and in finding that Dr C had lapsed into “subtle victim blaming” [at 83 and 170] and refusing to even acknowledge that there were appropriate concerns, or, there take account of the finding made regarding Mr B that, “Amongst other things, if his manner in the courtroom is replicated when he is with the children he may be an inappropriate role model to them” [at 165] which finding calls upon the court to weigh and assess the “benefits” to the mother of the continuation of that relationship and the terms thereof.
(i) Erred in recognizing that the orders sort by the father do not seek to encroach on the wife’s personal and professional relationship with Mr B but seeks orders that place appropriate boundaries around that relationship and the children. – As recommended by the expert.
(j) Erred by failing to consider that the wife’s own psychologist, Ms D had intervened and recommended to the wife that against the involvement of Mr B in her family and that the wife ultimately made concessions about that [T 15.2.2023 P127].
(k) Failed to indicate how the lack of a restraint upon the mother will reduce conflict as between the parties as opposed to increasing it given the findings [at 170,
173 and 176] as to it causing conflict between the parties.

15. His Honour erred [at 36 and elsewhere] in finding the matter was one characterised by high conflict and viewing the submission made by the husband as one showing the fathers lack of insight and then giving a history of the matter that doesn’t appropriately place weight upon the courts failure to allocate dates for trial in a timely manner or to properly manage the matter including as to:
(a) The matter being referred to be listed for trial by orders of 8.9.2020 and 3.3 2021 (by the Learned Chief Justice for 5 – 7 days) but yet not being allocated dates until 13.2.2023 for the trial to commence.
(b) Referring to there having been seven (7) applications of an interim nature being filed – without detailing that two were filed by the Mother and not proceeded with and the remainders came during the course of the final hearing, and how a number of those were late into the trial and brought by the wife often without notice or not pressed/ or were resolved.
(c) Failing to give a reasoned or balanced view of the number of orders made and the reasons for them by referring to 37 sets of Orders to support a high conflict case without failing to acknowledge that of the 37 Orders, 17 were Chambers hearings made of the Court’s own motion, one is the Divorce Order, 4 were the Orders of the Court in relation to adjourning the part heard trial and two were Consent Orders including most importantly, the parenting Consent Orders which resolved the Appeal and were in place until 26 July 2024.
(d) Failed to consider that in this matter there was not constantly litigation and it was due to the Court’s inability to give a hearing date that the matter was substantially lengthened, noting that: -
(i) The initial application was filed by the Wife and consent Orders made as to property on 1 July 2019 and parenting was adjourned to 29 July 2019.
(ii) That application saw parenting Orders made on an interim basis on 29
July 2019, with the SR requesting a Report and indicating he would relist after the release of the Report. The consent Order for the wife to receive $100,000 was also made that day.
(iii) The husband filed an application in the Covid list which was listed on 20 May 2020. The Report was released and the application was then expanded by both parties to be a fulsome interim hearing.
(iv) The husband reviewed the decision made 20 May 2020 which was heard on 20 July 2020 and was successful, with time increasing in holidays but not school terms.
(v) The husband filed an Appeal in September 2020. That Appeal was settled via consent Orders made 7 June 2021. In the following two and a half years, no further applications were then filed until the wife filed one on 21 December 2022 which was stood over to the first day of hearing.

(e) Indicating that the matter ran for 11 days when it had been listed for four without noting that orders had been made at the request of the husband on numerous occasions during the proceedings to have the wife identify the case she was running as to parenting as reflected in the orders made on 3 June 2022 and 9 November 2022 and the provision by her of her part of the balance sheet which had not been complied with by the wife until well after the trial commenced. The husband has been allocated the blame for what can only be described as a chaotic preparation for the hearing – the wife did not comply with any of the Orders made and even failed to complete the compliance check documents sent by the Court two days prior to the commencement of the hearing. The husband received the Wife’s exhibits to her trial Affidavit on the morning of the first day of the trial, the Wife’s financial statement on the Saturday prior to the Monday start, the objections on the Sunday night prior to the Monday start, the Mother’s Application setting out the Orders sought on Day 3, a balance sheet on day 4 and was advised mid-way through the first four days that the wife now sought to keep the home.
(f) The cross-examination of the wife having to be utilised to extract from her the start of a balance sheet on the third day of trial [T 15.2.2023 p 134] with the parties’ balance sheet was only provided by the wife on day four (4) of the trial.
(g) The Courts own indication to Counsel for the wife at 2.42 pm 15.2.2023 (day three of the trial) that, “--- That’s all. Okay. I just want to record that at 2.42 on the third day of hearing the court has received, I hope, the mother’s minute of proposed order. I simply record that just in case it becomes relevant in a subsequent costs application.” [T p 158].
(h) The length of the adjournment after the first tranche of hearing dates for 11 months (from 16.2.2023) carrying with it the risk as in any matter that further evidence would need to be called.
(i) The Husband objected to the filing of further Affidavits in the prolonged period but had to accept the Court needed to know where the mother proposed to live would live, given her evidence as to the lack of prospects she could retain the home. The Wife not only filed that Affidavit late but failed to address that issue – thus further prolonging cross examination – but also failed to include the material she had (and did not disclose it despite her obligations) about a knife incident and indeed she waited until after the Husband filed his own Affidavit to send him some but far from all of the material. That of course lead to the need to issue an urgent subpoena where it was identified that the Wife had not produced all material.

16. His Honour erred [at 38] in finding that the significant inconsistencies in the mother’s evidence between the first and second tranches of hearing dates demonstrated “the mother’s declining goodwill towards the father as well as the worsening relationship between them since the commencement of these proceedings” when such finding was not reasonably open upon the evidence and his Honour failed to consider the actual motives related to the mothers or her credit and/ or to intentional acts on the part of the mother – there being no real evidence that their relationship had “worsened” let alone ascribing a goodwill aspect to it. His Honour fails to indicate what such conclusion is based upon but only speculates.
17. His Honour erred, at 64, in finding that the fathers “unreasonable maintenance of his equal time position contributed to the prolonging of proceedings, with its consequential costs and emotional impact upon the family” which finding has no stated basis or causal link to the evidence in these proceedings and is simply wrong as is the complaint that the father wasted the courts time as to a legal privilege issue [at 72].
(a) Firstly, there is as indicated no indication that this issue (equal time) extended the trial, and where the husbands case included his solicitor receiving an email late at night in this case that indicated there was a settlement including equal time he could be forgiven for being sceptical if it was indicated that was in error – putting aside that he has, as is indicated [at 73] the fundamental right to litigate a justiciable issue. And all in circumstances where it was only the third day of the trial when he had any idea of the parenting case the mother was running and even then, the transcript shows that by the end of the first tranche of dates the mother has failed to put on evidence of where she might live [T 16.2.2023 p 267] and was again given latitude before the matter was then adjourned for another 11 months.
(b) Secondly, his Honour fails to consider that where on each occasion the matter was before the Court the mothers’ position changed (to the extent it could be gleaned as against her continued failures to comply with directions) and was to seek a further reduction in the time that the children spent with the father, even from a previous consent order.

18. His Honour erred [at 109] in firstly mistaking the evidence as to Dr C “recommendation. that the mother continue with her current therapies” when whilst that was the case his evidence was that the order the father sought that she do so was an appropriate order to have been sought in the circumstances [T 515 2.2.2024].
19. Erred in making various orders without affording the parties procedural fairness and which were mostly not sought by a party or ICL including-
(a) Order 15 which was not sought by anyone as to telephone contact by the party who does not have the children in their care every two days.
(b)Order 16 as to the restraint upon the father from surveillance of the children as well as the mother. This was sought by no-one and there is no evidence that could give support its making. It was procedurally unfair.
(c) Order 22 which was not sought and which is in the nature of a child support departure order.
(d) Order 31 was not sought and no procedural fairness was afforded. It is problematic when coupled with the order for the mother to have sole parental responsibility.

(e) Orders 32 and 33 as to the appointment of the ICL (as mentioned above).
(f) Orders 10 (i) and (j). These had not been sought by anyone and no notice given that they were to be made.
(g) Order 12 (a) to (e) was sought by the ICL but in the absence of evidence supporting the need for such orders.

Property adjustive proceedings
20. His Honour erred in removing the parties’ consent figure for item #30 of $57,590 from the balance sheet and without affording procedural fairness in advising that this may occur. This error is compounded [at 265] where his honour says it is taken into account in a general sense under s 75(2) , “the quantification of which has not been supported by admissible evidence from the father”, where such admissible evidence would not be necessary given the agreement inter parties and where there is no reasoning process indicating it has been taken into account and if so to what extent.
21. His Honour erred in the production of the parties adjusted balance sheet [at 227#3] by simply inserting a balance of the offset account that was asked for post - trial without an indication as to what use it would be put, when by simply recoding as to the offset account it had a total of $319, 905.62 after a deduction of $80,000 with respect to the wife’s further partial property application in that this does not otherwise take account of the difference between the parties figure and the Courts’ of $70,651.38 which one might presume had been applied in further contributions in the manner his Honour refers to [at 247].
22.His Honour erred in allowing the mother an opportunity to “purchase” or obtain the marital home in circumstances where the evidence was clear (including her own) she could not do so subject perhaps to her joining in with her partner in borrowing which was not her case and where the wife was subject to (only feint) criticism by failing to provide “more information” about the mother’s new partner [at 260].
23. His Honour erred by not making findings against the mother more stridently (to those at 261) to the effect that given those failures and taking into account that the obligation of full and frank disclosure is a central obligation in financial proceedings such that the wife’s new partner represented a significant resource to her.
24. His Honour erred in characterising the payments made by the husband to the offset account ($931,834.88) as purely a contribution made during the parties’ marriage [at 247] whilst then finding the parties respective contributions through marriage to be equal [at 255] failing inter alia to take account of the parties’ short marriage and the offset contributions so described.
25. His Honour erred in the overall assessment of contributions by a piecemeal attribution of quantified differences to various stages of the parties’ relationship leading to an exercise of discretion that was erroneous and unjust rather than carrying out a holistic assessment against the background of the marriage being a short one.

26. His Honour erred in the assessment of s 75(2) factors in that:
(a) His Honour fails to recognise and give effect to the consideration that the marriage was of short duration and thereby affected the 75(2) issue.
(b) His Honour fails to consider that the 5% adjustment proposed by the husband would lead to a disparity thereby of twice that and in any event, it should have centred upon the effect in real dollar terms. This is particularly apparent at 264 where his Honour quantifies it at $278,720 as opposed to twice that ($557,440 using his Honours figures).
(c) His Honour records but does not take into account the failure of the wife to adduce evidence of the nature and extent of the financial resource her new partner brings [at 259].
(d) His Honour fails to explain how the s 75(2) adjustment was calculated in the circumstances of the case thereby falling into error.

(e) His Honour fails to take account properly of the taxation / CGT impacts [at 261].
27.His Honour fails to take account of there being a mortgage over the jointly owned Suburb F property (also to the CBA) and provide for its discharge.
28. That his Honour erred in not making an order in the event that orders 37 and 38 are enlivened that the wife provide occupation of the home upon settlement.
29. His Honour failed to take account of the payments made to Dr C in accordance with Order 2 made 12 January 2024 and make an adjustment.

File number(s):	SYC 3365 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	26 September 2024
Catchwords:	FAMILY LAW – STAY APPLICATION – Where the father seeks a stay of all but two final orders made pending appeal – Where the mother opposes the stay application – Where the Independent Children’s Lawyer consents to an order requiring her to meet with the children to be stayed – Where this order is stayed – Where the Court finds that granting the stay application is not in the children’s best interests – Where the Court finds that failing to grant the stay application will not render the father’s appeal nugatory – Where the Court grants the mother an extension time to comply with the final orders to discharge and refinance the mortgage over the matrimonial home into her sole name.
Legislation:	Family Law Act 1975 (Cth) ss 61C, 61CA
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Clemett and Clemett (1981) FLC 91-013; [1980] FamCA 90 Goldsmith & Stinson(No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25 Kelly and Kelly (1981) FLC 91-007 Pickford & Pickford (No 2) [2024] FedCFamC1F 500
Division	Division 1 First Instance
Number of paragraphs:	70
Date of hearing:	19 September 2024
Place:	Sydney
Counsel for the Applicant:	Mr Sansom SC
Solicitor for the Applicant:	ATW Family Law
Counsel for the Respondent:	Mr Roche SC and Ms Hall
Solicitor for the Respondent:	Long Saad Woodbridge Lawyers
Counsel for the Independent Children's Lawyer:	Ms Tabbernor
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Sydney Central Family Law

SYC 3365 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR PICKFORD Applicant
AND:	MS PICKFORD Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	26 SEPTEMBER 2024