FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanders & Sanders [2022] FedCFamC1F 213
File number(s): SYC 7660 of 2020 Judgment of: CHRISTIE J Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – FINAL ORDERS – Property and Parenting – where both parents seek sole parental responsibility and primary care of the children – where the ICL seeks sole parental responsibility to the wife - where the wife has experienced depression and anxiety – allegations of family violence – alleged risk of harm to the children – risk to the children’s relationship with the mother Legislation: Family Law Act1975 (Cth), ss 60B, 60CA, 60CC, 65D, 79 Division: Division 1 First Instance Number of paragraphs: 224 Date of hearing: 31 January – 7 February 2022 Place: Sydney Counsel for the Applicant: Dr Barnett Solicitor for the Applicant: Ms Middlin, Minors Family Law Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Ms Shuttleworth, Barkus Doolan Counsel for the Independent Children's Lawyer: Mr O’Brien Solicitor for the Independent Children's Lawyer: Ms Jenkins, Russell Kennedy Aitken Lawyers ORDERS
SYC 7660 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANDERS
Applicant
AND: MR SANDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
PROPERTY
1.Within 42 days of the date of these orders the following shall occur simultaneously:
(a)Mr Sanders (“the husband”) do all things and sign all documents necessary to cause Ms Sanders (“the wife”) to be removed as guarantor of the mortgage to Westpac Banking Corporation secured against C Street, Suburb E, NSW being the whole of the land contained in folio identifier … (“the Suburb E property”) and the husband shall thereafter indemnify the wife in respect of this mortgage.
(b)The husband pay to the wife or as she may direct the sum of $632,290.
(c)The wife do all things, sign all documents and pay all such monies necessary to cause caveat …70 lodged by F Bank to be removed at her cost. In the event the wife fails to comply with this order, any funds necessary to be paid to cause the removal of caveat …70 will be paid from the funds payable to the wife pursuant to Order 1(b) above, and the balance of the funds thereafter shall be paid to the wife.
(d)The parties do all things and sign all documents necessary to transfer the wife’s right, title and interest in the Suburb E property to the husband and the husband will thereafter solely retain this property to the exclusion of the wife.
2.In the event the husband fails to make the payment to the wife as required by Order 1(b), provided that the failure is not the result of non-compliance by the wife with Order 1(c) above, then within 14 days of the husband’s failure, the parties do all things and sign all documents necessary to cause the sale of the Suburb E property and the following shall apply:
(a)The Suburb E property be listed for sale by private treaty, with an agent as agreed between the parties, and failing agreement:
(i)The husband will nominate three agents and within seven days of the husband nominating three agents the wife shall select one of the nominated agents to act and that agent shall be appointed by the parties.
(ii)In the event the wife fails to select an agent pursuant to Order 2(a)(i) above, the agent will be nominated by the husband and shall be appointed to act on the sale.
3.The listing price of the Suburb E property be as agreed between the parties and, failing agreement, shall be nominated by the real estate agent.
(a)The parties instruct a solicitor/conveyancer to have the conduct of the sale of the Suburb E property and the costs of and incidental to such appointment are to be borne equally by the parties as and when same fall due and for this purpose:
(i)The husband will nominate three solicitors/conveyancers and within seven days of the husband’s nominations, the wife shall select one of the nominated solicitors/conveyancers to act and they shall be appointed by the parties.
(ii)In the event the wife fails to select a solicitor/conveyancer pursuant to Order 3(a)(i) above, the solicitor/conveyancer will be nominated by the husband and shall be appointed to act on the sale.
4.In the event the Suburb E property has not been sold within three months of the date the property is first listed for sale, the parties do all things and sign all documents to procure a sale by public auction of the Suburb E property upon the following terms:
(a)The auctioneer shall be appointed by the agent;
(b)The auction shall take place within 30 days;
(c)The reserve price, unless agreed upon by the parties, shall be nominated by the agent;
(d)The husband shall be responsible for the auctioneer’s expenses as and when they fall due.
5.In the event the Suburb E property does not sell at auction pursuant to Order 4 above, the property shall be re-listed for auction within a further two months of the date of the previous auction, with a reduced reserve price as agreed upon by the parties, and failing agreement as nominated by the agent.
6.In the event that a sale cannot be effected in accordance with Order 5 above, the Suburb E property shall continue to be re-listed for sale in accordance with the provisions of Order 5.
7.Upon settlement of the sale of the Suburb E property the proceeds of the sale shall be applied in the following priority:
(a)Agents costs and commission;
(b)Legal costs incurred on the sale;
(c)Such sum as is required to discharge the mortgage secured against the property, being registered mortgage …15;
(d)Such sum as is required to cause caveat …70 lodged by F Bank to be withdrawn (pursuant to Order 1(c));
(e)That following the payments pursuant to Orders 7(a)-7(d) above, the net balance shall then be distributed as follows:
(i)$632,290 to the wife or as she may direct, less any amounts paid pursuant to Order 7(d), to cause caveat …70 lodged by F Bank to be withdrawn;
(ii)The balance to the husband or as he may direct.
8.Within 14 days of the date of the making of these orders the parties shall do all things and sign all documents necessary to close any joint bank accounts with the balance of the accounts to be equally divided between the parties.
9.Forthwith from the date of these orders and in relation to the following accounts, the wife shall hold all monies in trust for both X (born 2009) and Y (born 2010) (“the children”) until they attain the age of 18 years respectively, and within seven days of each child attaining 18 years of age, the wife shall pay to the child all monies held in trust on his behalf, including any interest accrued to the following accounts:
(a)CBA Account (account number …71) – X; and
(b)CBA Account (account number …98) – Y.
and the wife shall not access these monies unless otherwise agreed between the parties in writing.
10.Within seven days of receipt of funds pursuant to order 1(b) or 7(e)(i) the wife shall:
(a)Deposit the sum of $12,000 into CBA Account (account number …71); and
(b)Deposit the sum of $12,000 into CBA Account (account number …98).
11.Orders 12 to 15 below are binding on the trustee of Super Fund 1 (“the fund”).
12.In accordance with s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $50,000 (“the base amount”) is allocated to the wife out of the husband’s interest in the fund, member number 16208671.
13.Pursuant to s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the husband in the fund:
(a)The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount; and
(b)The entitlement of the husband in the fund (or the entitlement of such other person who becomes entitled to receive payment out of the husband’s superannuation interests) is correspondingly reduced by this order.
14.The Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Act, the entitlement awarded to the wife in the immediately preceding clause of this order (Order 13); and
(b)Pay the entitlement whenever the trustee makes a split payment from the husband’s interest in the fund.
15.Order 12 has effect from the operative time and the operative time is the beginning of the fourth business day upon which a copy of these orders is served upon the Trustee.
16.The solicitor for the wife shall cause a sealed copy of these orders to be served upon the Trustee of the fund.
17.Except as otherwise provided for in these orders, the husband be solely entitled to the exclusion of the wife to the following:
(a)All bank accounts in the husband’s name or control;
(b)All motor vehicles in the husband’s name or control;
(c)The husband’s interest in H Pty Ltd;
(d)All furniture and contents of the Suburb E property;
(e)All superannuation in the husband’s name or control subject to these orders;
(f)All other property and financial resources in the title, possession and/or control of the husband as at the date of the making of these orders.
18.Except as otherwise provided for in these orders, the wife be solely entitled to the exclusion of the husband to the following:
(a)All bank accounts in the wife’s name or control;
(b)All motor vehicles in the wife’s name or control;
(c)All superannuation in the wife’s name or control subject to these orders;
(d)All other property and financial resources in the title, possession and/or control of the wife as at the date of the making of these orders.
19.The wife is solely liable for any debt or fees owing to F Bank and will forever indemnify the husband in relation to this liability and in relation to any claims arising from F Bank in relation to the loan provided to the wife.
20.Otherwise each party shall forever indemnify the other in relation to the property they are to retain pursuant to these orders and in relation to any liabilities in their name not dealt with by these orders, including but not limited to any liabilities, taxes, and claims of whatsoever nature.
21.In the event that either party fails, refuses or neglects to sign any deed or instrument required to give effect to these orders then the Registrar of this Court is hereby empowered pursuant to s 106A of the Act to sign that deed or instrument in the place of the party in default and to do all acts and things to give that document full force, effect and validity.
PARENTING
22.The wife have sole parental responsibility for the children X (born 2009) and Y (born 2010) (“the children”).
23.The children live with the wife.
24.For three consecutive months the children have no contact with the husband.
25.The husband is restrained:
(a)Following delivery of judgment, from remaining within 97-99 Goulburn St, Sydney (the Lionel Bowen Court Building) and shall ensure that he remains outside a 500 metre radius of the building from noon on 7 April 2022 for the remainder of that day; and
(b)From contacting the children or responding to any contact from the children or causing any other person to make contact with the children on his behalf, for a period of three consecutive months.
26.If the husband complies with Order 24 and Order 25, the children are to spend supervised time with the husband each Saturday for four consecutive Saturdays for up to four hours, supervised by an agency agreed between the parties and absent agreement, nominated by the wife.
27.The costs of supervision be paid by the husband.
28.Following the time in Order 26 the husband spend time with the children during school terms each alternate weekend from Thursday after school to Monday before school.
29.If the husband complies with Orders 24, 25, 26 and 28, commencing in the September 2022 school holidays, the husband spend time with the children in the second half of each school holiday period, commencing at 10.00 am on the middle day of the holidays or if there are two middle days, the first of those days and concluding at the commencement of school.
30.At the conclusion of the period in Order 24, the husband is restrained from approaching the children during periods of time they are in their mother’s care under these orders except for the purpose of attending school or extra-curricular events for the children to which parents are ordinarily invited.
31.Notwithstanding anything in these orders the children shall spend time as follows:
(a)With the mother for the weekend of mother’s day from after school Friday to before school Monday;
(b)With the father for the weekend of father’s day from after school Friday to before school Monday;
(c)With the father from 9.00 am to 8.00 pm on 25 December in every odd numbered year.
32.Within 24 hours of the date of these orders the husband shall deliver to the wife’s nominee at a location nominated in correspondence from the wife’s lawyers the following items (if they are not already with the children):
(a)The children’s mobile telephones;
(b)The children’s iPads;
(c)The children’s school uniforms, homework and IT equipment required for school; and
(d)Such other items which in the opinion of the father will be required by the children.
33.A copy of these orders made be provided by either parent to:
(a)B School;
(b)D School;
(c)Or such other school as the children or either of them may attend; and
(d)Ms K and Mr L.
34.Either parent may provide a copy of these orders and the reasons for judgment to any treating practitioner (psychiatrist, psychologist, counsellor, therapist, clinical social worker) consulted by either parent or either child.
35.The children and the husband and wife (“the parents”) continue to attend upon Ms M of the N Services (or in the event that she becomes unavailable, a family therapist selected by the wife) (“the family therapist”) for the purposes of engaging in family therapy and in that regard:
(a)Therapy will be at such frequency as recommended by the family therapist NOTING that the recommendation of the single expert, Dr O, was that therapy should occur not less than once per week when the children first commence living with their mother;
(b)The wife will make herself and the children available for family therapy as directed by the family therapist;
(c)The wife will engage with any other therapy that might be recommended by the family therapist from time to time including intensive in-home family therapy in the event the family therapist considers such therapy necessary.
36.The wife forthwith upon the making of these orders engage a psychologist for each of the children and thereafter comply with the directions of that psychologist.
37.The parties share the costs of family therapy and the children’s psychologists equally.
38.The Court requests the Australian Federal Police forthwith remove the names of the children X (born 2009) and Y (born 2010) from the Family Law Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
39.Commencing with the school holidays in December 2022, either parent be permitted to travel with the children outside the Commonwealth of Australia on the following conditions:
(a)Travel takes place during that parent’s time with the children (or with consent in writing);
(b)A detailed itinerary of the proposed travel including but not limited to, the departure date and return date, and a list of all countries the children will be travelling to (including details of any stopover destinations) be provided to the other parent 28 days prior to departure;
(c)A copy of flight (and/or any other mode of travel) information during the period of travel, including but not limited to return airline tickets be provided to the other parent within 2 days of the booking being made;
(d)Contact details for the children for each destination in which the children travel to (including a telephone number and address) be provided to the other parent 7 days before departure;
(e)That such travel is limited to countries as identified by the Attorney-General’s Department, “Hague Convention on the Civil Aspects of International Child Abduction”, unless otherwise agreed between the parents in writing;
(f)That the travel destination is not classified as “Level 2 – Exercise a high degree of caution” (or any higher category) by the Department of Foreign Affairs and Trade, as at the date of the intended travel.
40.Within 21 days from the date of these orders, both parents shall do all acts and things and sign all documents necessary to ensure that the children have a current United Kingdom passport, with the cost of any passport and any renewal to be borne equally between the parents.
41.The parties do all things and sign all documents so that the wife and the children can travel outside of Australia, including seeking a resident return visa and that the children be awarded Australian citizenship and thereafter both the parents shall do all acts and things and sign all documents necessary to ensure that the children have a current Australian passport, with the cost of any passport and any renewal to be borne equally between the parents.
42.Within 72 hours of the making of these orders, any and all passports held by the husband, including but not limited to Australian Passport(s) and United Kingdom Passport(s), shall be surrendered and provided to the wife and/or her legal representative as so directed.
43.Each parent is hereby authorised to obtain from the children's school all notices including but not limited to functions and school events, newsletters, correspondence and school reports concerning the children, the school or such other activities or events to which the parents are invited.
44.Each parent shall keep the other informed of their current residential address, email address and telephone numbers and will provide the other with written notice of any change within 24 hours of such change.
45.Each of the parents shall be entitled to obtain directly from any health service provider or welfare professional (excluding any confidential counselling) attended upon by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose, each party shall immediately notify the other of the names and contact details of such relevant professional.
46.Each of the parents shall keep the other informed of:
(a)Any medical emergency involving the children including but not limited to serious illness, accident or hospitalisation and/or which requires urgent medical treatment whilst in the care of that parent, as soon as practicable and in any event, not more than 12 hours of such event occurring;
(b)Any medical appointments including appointments with specialists that the children attend whilst they are in that parent’s care;
(c)Any medication that is required to be administered to the children whilst they are in that parent’s care.
47.Each parent is hereby restrained from making critical or derogatory remarks in relation to the other parent while in the presence or hearing of the children, and that each will respectively use his or her best endeavours to ensure that as far as possible no other person does so.
48.Any application for waiver of the costs of the Independent Children’s Lawyer (“the ICL”) be made to the Legal Aid Commission within 14 days of these orders and in the absence of waiver the wife pay the costs of the ICL in the sum of $10,254.32 within 60 days of the date of these orders.
49.Any application for waiver of the costs of the ICL be made to the Legal Aid Commission within 14 days of these orders and in the absence of waiver the husband pay the costs of the ICL in the sum of $10,254.32 within 60 days of the date of these orders.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanders & Sanders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are final property and parenting proceedings.
Ms Sanders (“the wife”) initiated proceedings by filing an Initiating Application for Final Orders on 28 October 2020.
Her Honour Justice Henderson expedited the matter on 30 July 2021 and it was set down for hearing before me.
BACKGROUND
The wife was born in 1977.
Mr Sanders (“the husband”) was born in 1975.
The husband and wife (“the parties”) commenced co-habitation in August 2004 and married in 2007. The parties do not agree on the final date of separation with the wife contending for 15 August 2020 and the husband 29 July 2020. The wife was in hospital between 24 July 2020 and 14 August 2020. It is not necessary for me to make a finding as to the date of separation.
The parties have two children, X (born in 2009, aged 13) (“X”) and Y (born in 2010, aged 11) (“Y”) (“the children”). In this judgment X is referred to as X, as that is the name used by both his parents. The children are legally represented in the proceedings by an Independent Children’s Lawyer (“the ICL”).
While the proceedings concerned both applications for financial orders and applications for parenting orders, the hearing was primarily concerned (understandably) with the parenting matter.
FINANCIAL MATTERS
Each party filed an application for adjustment of property interests following their separation.
The most significant asset is the parties’ home at C Street, Suburb E (“the Suburb E property”).
The husband seeks to retain the Suburb E property, release the wife from a guarantee, indemnify her against the mortgage and pay her a cash sum. If he is unable to comply with the orders for payment of the cash sum he seeks default orders for the sale of the Suburb E property.
The wife’s orders also see the husband retain the Suburb E property and release her from a guarantee, payment of a cash sum and default orders for sale.
Each party seeks a superannuation splitting order in respect of the husband’s interest in the Super Fund 1 in the sum of $50,000. The trustee of the superannuation fund was accorded procedural fairness.
The husband submitted that the net assets of the parties should be divided so as to see him receive 61 per cent of them. He said this recognises his greater contributions. He acknowledged through his counsel that if the parenting orders provided that the children were to live with their mother it would be necessary that there be an (unspecified) adjustment in her favour.
The wife submitted that the net assets of the parties should be divided so as to see her receive 62 per cent of them. She said this recognises equality of contribution and an adjustment to take into account the income disparity between the parties and, should the Court make the parenting orders she seeks, the fact that the majority of parenting will be undertaken by her.
Parties assets, liabilities and superannuation
The parties prepared a joint balance sheet listing their assets, liabilities and superannuation and proposing the “addback” of various items of notional property which became exhibit LL. That joint balance sheet is set out below. It was largely without controversy.
| Ownership | Description | Applicant’s Value | Respondent’s Value | ||
| ASSETS | |||||
| 1 | JOINT | C Street, SUBURB E, NSW | $1,300,000 | $1,300,000 | |
| 2 | RESPONDENT | H Pty Ltd. (ACN …) | $Nominal | $Nominal | |
| 3 | JOINT | G Bank Offset Savings Account (account number …35) | NIL | NIL | |
| 4 | APPLICANT | CBA Account (account number …41) | $2,732 | $2,732 | |
| 5 | APPLICANT | CBA Account (account number) …68) | $52 | $52 | |
| 6 | APPLICANT | HH Finance Card – subscriber no. …76) | $592 | $592 | |
| 7 | APPLICANT | Westpac Account (account number …01) | NIL | NIL | |
| 8 | APPLICANT | Westpac Account (account number …33 | NIL | NIL | |
| 9 | RESPONDENT | G Bank Account (account number …12) | $3,981 | $3,981 | |
| 10 | RESPONDENT | G Bank Account (account number …13) | $100 | $100 | |
| 11 | RESPONDENT | Westpac Account (account number …65) | $100 | $100 | |
| 12 | RESPONDENT | Westpac Account (account number …34) | $1,000 | $1,000 | |
| 13 | RESPONDENT | Westpac Account (account number …42) | NIL | NIL | |
| 14 | APPLICANT | CBA Account (X, account number …71, balance at 21 January 2022 was $1,006.69) | NIL | NIL | |
| 15 | APPLICANT | CBA Account (Y, account number …98, balance at 21 January 2022 was $1,006.60) | NIL | NIL | |
| 16 | APPLICANT | Motor Vehicle 2 | $2,600 | $2,600 | |
| 17 | RESPONDENT | Motor Vehicle 1 | $6,000 | $6,000 | |
| 18 | APPLICANT | Interim property distribution for Applicant | $30,000 | $30,000 | |
| 19 | RESPONDENT | Interim property distribution for Respondent | $25,000 | $25,000 | |
| Total: | $1,372,157 | $1,372,157 | |||
| ADDBACKS | |||||
| 20 | APPLICANT | Funds utilised from CBA Account (X, account number …71, total balance of funds utilised as at 20 January 2022 is $12,154.19) | $12,154 | $12,154 | |
| 21 | APPLICANT | Funds utilised from CBA Account (Y, account number …98, total balance of funds utilised as at 20 January 2022 is 12,154.19) | $12,154 | $12,154 | |
| 22 | APPLICANT | Funds removed from superannuation | NIL | $10,000 | |
| Total: | $24,308 | $34,308 | |||
| LIABILITIES | |||||
| 23 | RESPONDENT | Westpac Home Loan Account (excluding portion of refinance obtained for Husband's legal fees identified at point 27 below) Total amount owing $549,156. | $399,156 | $399,156 | |
| 24 | APPLICANT | Q Finance (F Bank – total inclusive of interest is $183,131.24 – legal fees) | NIL | NIL | |
| 25 | APPLICANT | Personal loan from Mr P & Ms P (GBP3,000/AUD5348.70 – legal fees) | NIL | NIL | |
| 26 | RESPONDENT | G Bank MasterCard (account ending …01) | NIL | $817 | |
| 27 | RESPONDENT | Westpac refinance ($150,000 – loan for legal fees) | NIL | NIL | |
| 28 | RESPONDENT | Personal Loan from parents ($30,857 owed – legal fees) | NIL | NIL | |
| 29 | RESPONDENT | Outstanding legal fees owing to JJ Lawyers ($20,106 – legal fees) | NIL | NIL | |
| 30 | RESPONDENT | Income Tax 551 (FY 2020) | $12,009 | $12,009 | |
| 31 | RESPONDENT | H Pty Ltd outstanding GST for June 2021 BAS | NIL | $1,054 | |
| 32 | RESPONDENT | Estimated income tax for FY2021 | NIL | $6,285 | |
| 33 | RESPONDENT | Estimated income tax for FY2022 | NIL | $59,558 | |
| Total: | $411,165 | $478,879 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicant’s Value | Respondent’s Value | |
| 34 | APPLICANT | Super Fund 4 | Accumulation | $91,063 | $91,063 |
| 35 | RESPONDENT | Super Fund 2 (formerly Super Fund 3) | Accumulation | $207,679 | $207,679 |
| 36 | RESPONDENT | Super Fund 1 | Accumulation | $135,660 | $135,660 |
| Total: | $434,402 | $434,402 | |||
There was a dispute about the inclusion of notional property. The husband contended that the $10,000 the wife removed from her superannuation should be included in the pool. The husband also initially submitted that amounts removed by the wife from the children’s bank accounts should be included in the pool. That issue was resolved since the wife’s position is that she agrees to be bound by orders for payment of those funds to the credit of the parties’ children.
The parties did not agree about whether certain liabilities should be taken into account by the court when calculating the net pool available for division. Those liabilities were a credit card belonging to the husband, GST owed by H Pty Ltd and estimated income tax for the financial years ended 30 June 2021 and 30 June 2022.
PARENTING
Each party to the proceedings asks the Court to find that the children are at risk of harm in the care of the other parent.
The husband says that the wife’s conduct during the relationship, in particular in the latter years of the relationship, creates a risk that she may conduct herself in such a way as to pose a physical threat to the children. He argues that the children do not “feel safe” in her care.
The wife says that the husband has allowed the children to be exposed to his purported concerns about her mental health. The consequence, she says, is that the children are afraid she poses a risk to them as a consequence of the husband’s influence, as opposed to her own actions or words. The wife identifies the husband’s actions as posing a significant psychological risk to the children and a related risk to the maintenance of the mother/son relationship.
The court was tasked with examining the evidence and making findings, with the assistance of expert evidence, to enable the making of orders which will be in the best interests of the children.
THE LAW
Financial orders
The Family Law Act1975 (Cth) (“the Act”) creates a statutory framework within which to exercise the broad discretion granted by s 79 to make such order as the court considers appropriate.
It is necessary to identify the parties’ assets and their ownership as a precursor to consideration of any application to alter or adjust those interests.
Having reached a conclusion about the composition, value and ownership of the assets, an assessment of the parties’ various contributions (both financial and non-financial) is required. It is important to approach this exercise holistically.
In some cases it will be appropriate, having considered the parties’ respective contributions, to make an adjustment to the contribution based assessment by reason of matters relating to their respective future financial positions as revealed by the evidence.
Section 79(4)(e) of the Act directs the court’s attention to those matters contained in s 75(2), such as they are relevant.
The care arrangements for children of the relationship will be particularly relevant if the children are likely to live predominantly in one household: s 75(2)(c) of the Act. It may also be necessary to consider any particular expenses the parenting arrangement itself might impose or require (e.g. supervision, therapy and the like). Against this, it is appropriate to consider whether child support is being or will be paid.
In circumstances where there is a disparity in income and/or earning capacity this may result in an adjustment. A related issue may include whether or not the duration of the marriage has had an impact on the earning capacity of one (or both) of the parties.
Parenting orders
The exercise of making parenting orders is governed by the principle that the court must regard the best interests of the child as the paramount consideration: s 60CA of the Act.
It is important to understand the specific statutory provisions in light of the objects of Part 7 of the Act. Importantly, the fact that children have the right to know and be cared for by both parents and a right to spend time with both parents on a regular basis: s 60B(2)(a) and (b) of the Act.
Making orders which are in the best interests of the subject children is an exercise of discretion guided by the statutory considerations.
In this case the two most significant issues for determination (as defined by the parameters of the parties’ dispute) are whether or not the children are at risk of harm in the care of one parent or the other and whether or not the various proposals for care arrangements will recognise the importance to these children of a meaningful relationship with both parents.
The parties are in dispute about how parental responsibility is to be held. The husband sought an order for sole parental responsibility. The wife sought an order for equal shared parental responsibility.
The obligation of the court is to make such parenting order as it thinks proper: s 65D of the Act.
The question of what will constitute a “proper order” is informed by s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
It is necessary in this case, pursuant to s 60CC(1) of the Act, to consider those matters set out in subsections (2) and (3) of s 60CC. Section 60CC(2) sets out the primary considerations:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from risk of physical or psychological harm from being exposed to abuse or family violence.
with (2)(b) to be given priority.
Section 60CC(3) contains, what are referred to as additional considerations. Importantly, at subparagraph (a), any views expressed by the child and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. In this particular case subsection 3(d)(i) must be taken into consideration:
(3) (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents…
CONSIDERATION: PARENTING
Parental Responsibility
In the minute of order relied upon by the wife, she sought an order that the parents have equal shared parental responsibility but in the event of a disagreement, she be permitted to make the final decision. In final submissions counsel who appeared on behalf of the wife agreed that, what the wife was in effect seeking was an order for sole parental responsibility. The ICL sought an order that the wife have sole parental responsibility on the basis that she should provide information about her decision to the husband. The husband sought an order that he have sole parental responsibility.
Orders for parental responsibility are orders that must operate in the best interests of the subject children. While the Act provides a presumption in favour of equal shared responsibility when making a parenting order, the presumption may be rebutted either by evidence of family violence or evidence that the making of an order for equal shared parental responsibility would not be in the interests of the subject children: s 61DA of the Act.
Effectively, no party sought an order for equal shared parental responsibility. The level of conflict and distrust between the parties is sufficient for me to conclude that such an order (if it had been sought) would not have operated in the children’s best interests. Accordingly, the task is to determine which of the parents should exercise parental responsibility.
There are two reasons which favour the making of an order for sole parental responsibility in favour of the wife. The first of those is that, the orders which I make will provide that the children live predominantly with her. The second reason is that she has shown herself willing and able to obtain advice to assist the children where necessary. I am satisfied that, whatever decision she makes which qualify as an exercise of parental responsibility, will be decisions which operate in the best interests of the children.
The wife should inform the husband of the decisions she makes (if any) about long term issues for the children but she should not be required to enter into a dialogue about these matters with the husband as to do so is likely to expose the children to conflict between their parents.
The primary considerations
It was not controversial in this case that there was a benefit to the children having a relationship with both of their parents. The husband agreed that he wanted his children to have a relationship with the wife. The difficulty was that, absent orders designed specifically to address the deterioration in the children’s relationship with the wife, the single expert, Dr O (“Dr O”), was of the view that the children were at significant risk of losing their relationship with their mother, potentially for decades to come.
The husband’s application provided for limited time between the children and the wife (one day per fortnight during the school term). From the husband’s perspective, such time was consistent with the children’s expressed views and designed to minimise their exposure to more extended overnight time, which he contended the children would find challenging.
Having heard the evidence I accept that the children have found and will find more extended overnight time with the wife challenging, particularly in the short term. However, there are a number of matters which require consideration alongside this finding.
Ms M (“Ms M”), the parties’ family therapist, gave evidence that the children were relaxed in the wife’s household (at least at the time she was engaging with them). The wife gave evidence about enjoyable and relaxed times with the children – noting that she accepted this was the case at present in only a quarter to a third of her time. There was also evidence from the wife and her lay witnesses about the nature and quality of the children’s relationship with the wife prior to separation. I accept that evidence because it accords with the husband’s willingness to leave the children in the wife’s care for extended periods while he worked out of Sydney. I also find support for this conclusion in the children’s observations about the care arrangements pre-separation with the wife being responsible for taking them to their activities (and indeed participating in martial arts as well).
In a similar vein, Ms R (“Ms R”), the wife’s treating psychologist gave evidence that the wife presented in sessions with her as a competent parent who was attentive to her children’s individual interests, had fostered their peer relationships, had obtained assistance for them when required and worked with her on strategies for dealing with behavioural issues. Ms R understood that the wife would find the experience of parenting full time challenging not on the basis she lacked the requisite skills but rather that she lacked confidence in her skills.
Ultimately, Dr O expressed the view that, in order to give the children the best opportunity to have a meaningful relationship with both parents, it was necessary to take the step of restricting the children’s time with the husband to allow them to “rebalance the scales – give the children the opportunity to recalibrate their relationship with their mother without interference and without sabotage”.
Even though it was accepted by both parents that it was desirable that their children have a meaningful relationship with each of them, that is subservient to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act. It is therefore necessary to understand the evidence relied upon by each of the parents as it related to future risk of both physical and psychological harm.
Future risk is best assessed by reference to the available evidence about what has occurred in the past and what is occurring in the present.
There is no dispute that the wife has a long history of episodic depression and was hospitalised suffering from Major Depression and Generalised Anxiety Disorder between 24 July 2020 and 14 August 2020. A diagnosis of this nature would not, by itself, raise a concern that the children were at risk of harm in the wife’s care. The wife has a twenty year history of anxiety and depression with episodes of self-harm and suicidal ideation. The wife is under the care of Ms R and psychiatrist, Dr S (“Dr S”). The wife’s psychologist prepared a report and was cross-examined. The wife’s psychiatrist was not on affidavit although I note there were last minutes efforts to make him available for cross-examination which were unsuccessful. While the husband submitted that I should attach significance to the failure of the wife to call Dr S, I find that there was no evidence (including in the husband’s case) to suggest the wife had been acutely unwell since her discharge from the T Clinic in July/August 2020 and so the failure to hear from Dr S is not significant.
The wife’s medical history shows a long term commitment to obtaining medical and psychological assistance and unchallenged improvement in her health in the period since separating from the husband.
The case as articulated by the husband was that the wife’s mental health history had resulted in her behaving erratically, engaging in self-harm, experiencing suicidal ideation and making threats of suicide, yelling in an irrational manner, disengaging, committing acts of violence towards him, using alcohol to excess, unsafe driving and, towards the end of the relationship, making statements which he interpreted as indicative of an intention to harm herself and the children.
Each of those matters require consideration to evaluate whether or not, if accepted, the court would be concerned that moving forward those facts are indicative of the children being at risk of future harm. Under a heading in his affidavit “Ms Sanders’ bad behaviour and self-harm” the husband gave evidence of an incident in December 2011 where he says the wife was bathing X. The husband came to the bathroom after he heard X screaming and says he saw the wife trying to push X to sit down in the water, causing him to scream more loudly. The husband then suggests that the parties had a disagreement about the temperature of the water. As it transpired, the child was not injured. The husband says at that time, the wife said words to the effect “I can’t handle it. I am not good enough” and “I should just kill myself” and the following day he suggests that he saw cuts on the wife’s arms and legs which “looked fresh, and were very short and very red”. He says that it was in this context that the wife spoke to him about her history of depression and episodes of self-harm.
The wife for her part indicated that, whilst there had been an occasion on which the water in X’s bath had been too hot, it did not occur in the way set out by the husband. It is not necessary for me to make a finding as to how the event involving X’s bath took place. No version, either that of the husband or the wife, suggests that either parent placed the child deliberately at harm. Even if the event occurred precisely in the manner that the husband describes, it is consistent with the wife’s evidence that from time to time during the relationship, she engaged in self-harm. Both Dr O and Ms R were asked about the wife’s self-harm and indicated that it was a way in which the wife dealt with her emotions and, placed on a continuum, was not considered clinically significant by either of those professionals.
The husband gave evidence that there was another incident involving the bathing, this time of the parties’ child Y, when Y cried because the water was too hot. The husband gave evidence that, as a consequence, the wife, dressed in her pyjamas, ran out of the house and did not return until the following morning. The wife also gave evidence about that particular incident and indicated that she and the husband had engaged in an argument and that she left and stayed with a friend. Again, accepting the events to have taken place, even the husband’s version of those events does not raise a concern that, if the children were to be in the care of the wife, the facts and circumstances of that particular incident would place the children at physical or psychological risk of harm. The fact that the wife left the children in the care of their father does not suggest that her actions on that evening placed the children at risk.
The husband gave evidence that on 21 November 2015, the wife was out with friends and returned home having consumed alcohol to excess. The husband alleged that the wife had kicked him in the stomach and groin. Specifically at paragraph 126 of the husband’s affidavit, he said that the following week his pain was so intense from the kick that he could not fly to Melbourne for work and visited his General Practitioner, who prescribed him antibiotics, which he took along with paracetamol for the pain. In paragraph 127 of his affidavit, the husband indicated that the pain did not subside and so on 18 December 2015, he attended at U Hospital. He says that he did not have any external bruising and that U Hospital performed a scan which showed he had a “swollen colon, hernia, and minor collapsed lung on his left side”. He attached a copy of his discharge summary to his affidavit. Reading the husband’s affidavit, it would appear as though he sought to attribute his injuries resulting in a swollen colon, hernia and minor collapsed lung, to the wife.
During cross-examination, the husband was taken to the events of that particular occasion. It was put to him that the wife had not kicked him. The husband maintained that she had. He was challenged about having failed to identify to either the General Practitioner or the medical staff at U Hospital the nature of his injury. Counsel for the wife indicated that he could have obtained more appropriate medical attention if he had (even in general terms) outlined to those from whom he was seeking the treatment, that he had received some sort of blunt force injury. The husband provided no explanation for, not even in general terms, outlining the nature of his injury to those from whom he was seeking medical attention in his evidence in chief. In cross-examination he offered that he was frightened to inform the hospital staff.
It was put to the husband that the reason he did not indicate to the hospital staff the nature of the injury was because, as the wife contended, she had not indeed kicked him. The husband maintained that he had received the injury as indicated. However, he was then taken to the text message interchange between himself and the wife which took place around the time of his attendance upon U Hospital. The first text message appearing in the wife’s tender bundle at page 235 dealing with the events of that time contains this message:
Give me a call when you have a few minutes free. I think I have to go to hospital when I get back. Maybe Friday evening. I am feeling fine, just a few symptoms including some pain that are [sic] still lingering.
It is plain that the husband did not at that time raise with the wife any suggestion that the pain or symptoms were a consequence of an injury which she had inflicted upon him. On 18 December 2015 at 10.16 am, the husband sent the wife a message that read:
Just landed at 10.15. Will be on a train to [Suburb V] soon. I’ll call you once I’m at the hospital. Love you too.
At 1.18 pm, the husband sent this message:
It is 1.17pm. Waiting at triage. Some other people in a bad way, so I’m waiting
[and later]
just had ultrasound on my balls :). Bad reception text me. I have 40% power...
He also enquired of the wife in a text message later that afternoon, whether or not he could have Keflex. With reference to his discharge summary, that would appear to be him enquiring of the wife whether or not it was an antibiotic to which he was allergic. There was still no reference to him attending upon the hospital as a consequence of anything inflicted upon him by the wife.
When the wife sent him a message to the effect “are they keeping you in or sending you home”, he wrote back:
Don’t know yet, more tests I think. My balls are ok, no cancer or anything. They say my left side and balls shouldn’t hurt, so I think tummy scans next. Current opinion isn’t infection, so maybe some stronger antibiotics
The text message communication between the husband and wife continued with the wife responding to the husband’s message “Hopefully I can go home soon” by saying “Don’t rush just get better soon”. His response was:
Infection is the current conclusion. Nothing looks bad in scans, so they are giving me some antibiotics, and have to get more. They reckon I have some nasty super bug, so need strong antibiotics
The content of the text messages between the parties read together with the husband’s discharge summary, do not leave open the option that the injuries which the husband attributed to the wife were the cause of him having to attend upon the hospital.
The discharge summary does not, as the husband contended, indicate that he had suffered injuries as a consequence of an attack by the wife but rather that having excluded cancer, the hospital was of the opinion that he had an infection. If the husband knew that his injuries were from an assault, firstly it makes little sense that he would not have shared that or at least some similar information with the hospital, that he would have permitted them to investigate cancer and that he would have allowed himself to be tested for sexually transmitted diseases. Consequently, I reject that husband’s evidence to the extent that he intended the Court find the wife had been responsible for injuries that saw him consult with medical practitioners. It is a serious matter to, in his affidavit, suggest to the Court that the hospital records were consistent with attributing to the wife a swollen colon, hernia and minor collapsed lung in circumstances where the evidence does not support the same conclusion.
The husband alleged that the wife had been intoxicated on a number of occasions. When questioned about this in more detail, the husband did not suggest that the wife had been drinking whilst having the sole care of the children or that she had been drinking during the day time. The husband’s evidence was to the effect that the wife would, from time to time, go out and come home having been drinking with friends. He indicated that she had drunk to the extent that she had vomited and that the children had witnessed her in this state.
The husband’s complaints about the wife’s alcohol consumption posing a risk of harm to the children appeared out of step with his own conduct. In his affidavit material he indicated to the court that he had not been in a drunken state for several years which seems, on its face, to suggest that he had been in a drunken state at a time prior to the vague “several years” he asserts. It was not plain whether or not this was at a time when he had children and what the circumstances were for the children at that time.
The husband’s affidavit material dealt with his use of cannabis. He gave evidence of smoking cannabis commencing in January 2017 and doing so after the children were in bed on a Friday night once every 50 – 60 days. When his brother, Mr W (“Mr W”), gave evidence, he suggested that the husband’s cannabis use had been more frequent than every 50 – 60 days. The husband in his affidavit said that if he had smoked cannabis he did not drive for two to three days following. That in and of itself seems to suggest that he understood that his cannabis use had impaired his functions. Either that or he did not believe that it impaired his functioning but realised that he ought not drive a car. In either event, he had placed himself by his use of an illicit substance unable to undertake an activity which may have been necessary having regard to his parenting responsibilities for the children.
The way the evidence unfolded, there was nothing in the drug or alcohol use of either of the parents to suggest to the Court that the children would be at risk of harm in either of their care as a consequence of that drug and alcohol use. That is not to say that the Court condoned that conduct but rather to acknowledge that the material provided did not suggest an ongoing risk of harm to the children. Indeed, if the children were at risk in the care of either parent as a consequence of their drug and alcohol use, that risk would be present during any period of unsupervised time and neither parent sought supervision.
The children have not suggested that the wife has used alcohol to excess whilst they have been in her care since separation. There was some suggestion in the husband’s affidavit material that the children had seen the wife fall over whilst they had been in her care after separation and the husband raised in cross-examination, that a neighbour had commented that she had been drinking. It was not possible to ascertain whether or not this was a comment made in jest as, when the matter was explored in cross-examination, the husband agreed that the likelihood of the wife drinking alcohol in the morning or during the day whilst the children were in her care, would be uncharacteristic of the wife and consequently, I cannot find on the balance of probabilities that there is any evidence that the wife has engaged in such conduct after separation.
The wife is under the care of a psychiatrist and a General Practitioner and between those two medical professionals, she takes prescription medication for her health including her mental health. As part of the husband’s case, he raised a concern that the wife had overused prescription medication such as to impact on her parenting capacity.
The wife reported to Ms R that from time to time she had over medicated herself as a way of dealing with the problems in her relationship. When Ms R was asked questions about which drug she was referring to in her notes when the wife discussed overmedication, she said that it was probably Xanax. Xanax has been prescribed for the wife to treat anxiety. It is to be taken as required as opposed to being taken in a prescribed dose each day. There is no medical evidence before the Court to suggest that the wife has abused prescription drugs. The wife does not deny that she may have used Xanax when she was unable to cope with the problems in her relationship.
The Court is comforted by the evidence from Ms R that the wife’s mental health has greatly improved since the relationship ended. Ms R is able to present a longitudinal picture of the wife’s health, having treated her during the relationship and following its conclusion.
The husband raised a concern that, when the wife was discharged from the T Clinic on 14 August 2020, the discharge summary listed her medications which did not include either Valium or Melatonin. The wife gave evidence that Melatonin and Valium had been prescribed for her when she was in the T Clinic and in respect to the Melatonin, to assist her with sleep. The husband was critical that, on 15 August 2020, after discharge from the T Clinic, the wife attended upon her usual General Practitioner and was prescribed Valium and Melatonin. The wife for her part indicated to the Court that having been discharged from hospital, her relationship having ended and being separated from her children, she did not sleep well the night of her discharge and attended upon her General Practitioner the following day with a view to obtaining medication to assist her with that difficulty.
As at the date of hearing, there is no evidence to suggest that the wife has been effected by misuse or overuse of prescription medication. Further comfort is obtained by the fact that since separation, the wife has obtained and retained work in the allied health sector and undertakes that work in a permanent part time capacity for one employer and on a casual basis for a second employer.
Allegations of family violence
The next serious incident which the husband sets out in his affidavit material is contained at paragraph 191(a) which deals with an event in October 2017 where the husband said that the wife had brandished a knife at him in the presence of Y and yelled “I hate you”. The wife for her part did not deny that there may have been an occasion in which she and the husband were having an argument and she had a knife in her hand, but she denied having ever brandished the knife at the husband. That denial related also to the husband’s allegation that she had done so on an occasion in June 2018 during an argument about finances.
The husband gave evidence that in late 2017 the wife had multiple outbursts during which she punched walls and threw drinking glasses in the kitchen, as well as engaging in self-harm. He said that in December 2017 the wife said words to the effect "I can't take it, my life is terrible. I hate this place" and kicked a hole in the living room wall. The wife was not specifically questioned about this allegation and consequently I cannot make a finding about it.
The husband gave evidence about another argument between the parties in December 2019. He said the wife banged the granite kitchen counter with her fist and called the husband an autistic arsehole. The wife was not cross-examined about this particular incident. I can comfortably find that the children were exposed to arguments between their parents in which there was yelling. This is consistent with the reports the children have made – as discussed below.
I find that to the extent that the parties argued during the relationship I cannot find that the wife was violent to the husband in the manner alleged by him. This is supported by the New South Wales Police Service records (marked as exhibit I) of the husband’s attendance on the police station after separation when the police record that the husband “did not disclose any physical or domestic violence threats”. That is not the same as finding that the parties did not argue or that the wife was not, from time to time overwrought.
The husband says that the wife made threats of self-harm in the presence of the children. As an example, the husband says that on one occasion in 2018 when the family were out shopping, Y said words to the effect "I want to go in Dad's car with him", the wife responded to the effect "why don't you love me? No one in this family loves me. I should kill myself so you can all be happy". The wife denied that she used those words on that occasion but agreed that the children were exposed to her speaking of self-harm in the context of an argument with the husband prior to her stay at the T Clinic. I accept that the children would have been frightened by the wife’s comments on this occasion. I cannot discount she may have used that language previously.
The husband has not allowed the children to drive with the wife after separation and the children have become phobic of being passengers in a car driven by the wife.
Between the time of the children’s birth and separation, the wife was responsible for transporting the children on the majority of occasions as the primary care for them fell to her, particularly during long periods of time when the husband was absent from Sydney for work. The husband’s affidavit contained several examples of what he regarded as careless driving or driving errors. Somewhat curiously, the husband indicated that he allowed the wife on multiple occasions to drive for a few minutes during the evening without her headlights on. The husband asks the Court to be more concerned about the wife’s driving than he clearly was during the parties’ relationship. There is no objective evidence to support the husband’s concerns about the wife’s driving. A parent is not required to have a perfect driving record. The husband for his part, as is clear from exhibit Q, has driving infringements of his own.
Y reported to Ms Z (“Ms Z”), the children’s treating psychologist at the time, in December 2020 that his father had “researched medication and found out that you aren’t allowed to drive while taking it”. In reality, as the wife’s treating psychiatrist Dr S confirmed, the wife’s medications do not impact on her ability to drive.
The husband agreed in cross-examination that he had shared his concerns about the wife driving the children with the children.
The most significant issue which arises from the husband’s concerns about the wife’s driving is actually the way in which he has inculcated fear in the children about her driving, leading to the development of a phobia by the children, related to being in the car with their mother.
The husband conflates his concerns about the wife’s driving with comments which she made at the end of the relationship which he interpreted to be threats to harm herself and/or the children by way of a car accident. Rather than reassuring the children that the wife is someone who does not have a significant history of car accidents and someone who would never intentionally place them in harm’s way, the husband has reinforced the children’s fear of driving with their mother including by discussing that he shares that fear and also paying for their transport whilst in the care of their mother via Uber.
The events of 22 to 24 July 2020
It is important to understand the events leading to the parties’ separation because they have loomed large in the mind of the children and the parents since separation. They cannot, however be seen in isolation as they seem to be a culmination of difficulties in the parties’ relationship which had the effect of exacerbating the wife’s mental health challenges.
The husband agrees that he expressed a preference to the wife that she not leave the home for the purpose of paid employment during the COVID-19 Pandemic (“Covid”) in the first part of 2020. The wife’s family had been visiting the parties and the children from the United Kingdom and living with them. Restrictions which came into effect as a consequence of Covid meant that the wife’s family were not able to return to the United Kingdom as planned. It is plain that the adults were under considerable pressure during this period and that that children were exposed to the conflict. The wife reported to her psychologist that her husband had expressed disapproval of her desire to take walks.
The wife was not working and the parties agreed that she would attend to some renovation type work around the house. The wife reported to her psychologist that she felt uneasy about undertaking the work and before she had commenced it, was concerned that the husband would find fault with it. She was unprepared, she told her psychologist, to use his tools in case something went wrong and purchased tools of her own. She commenced the work and found it difficult. She says that the husband criticised her for the work. The parties are not significantly at issue about this.
Following that interaction, on 23 July 2020, the wife says that she had an emotional outburst where she said to the husband “I fucking hate you” and hit the marble counter. She agrees that during an argument on 24 July 2020, she said “I just want to die I feel so trapped”. The wife realised that she had experienced a deterioration in her mental health and wellbeing and consulted her General Practitioner to arrange for her inpatient treatment at the T Clinic.
The events at separation would have been frightening for the whole family. But it is important to understand to what extent, based on the medical evidence, they constitute an ongoing risk of harm to the children. On admission to the T Clinic on 24 July 2020 the wife’s risk of suicide and aggression (to others) was assessed as low and her risk of self-harm as medium. On discharge from the clinic on 14 August 2020 the wife was assessed as a low risk for suicide, self-harm and violence/aggression (to others). The discharge plan records her as empowered and happy with a good support network.
The wife is under the care of Ms R. The wife commenced her attendance upon Ms R in April 2017. She has continued attendance upon Ms R since that time with varying frequency. In the period between 8 February 2021 and 17 January 2022, the wife attended 17 sessions with Ms R.
The husband sought an order that the wife continue to see both her treating psychologist and psychiatrist. I note the wife was agreeable to the making of such an order. I am not satisfied on the evidence that notwithstanding the order is not opposed, it is a necessary order. The evidence establishes that the mother has been voluntarily proactive in the treatment of her mental health and there is no evidence before me to suggest that she will not continue to seek treatment and follow recommendations absent an order.
Given the length of the wife’s engagement with her treating psychologist and the fact that the treatment period has included significant years during the relationship and now a period almost eighteen months post-separation, it has equipped Ms R to assess the wife’s psychological functioning while in the marriage against her functioning post-separation. This is significant in circumstances where the psychologist’s contemporaneous notes and her report dated 25 September 2020 both identify as a stressor the parental relationship and in particular the wife’s experience of feeling criticised by a husband who she reported referred to her as a retard and stupid.
According to the wife’s psychologist, after separation the wife was no longer in an environment where she was exposed to the same criticisms from her husband. However, that stressor was replaced with the involuntary separation from her children. It remained the opinion of Ms R that during that period, the wife has managed her anxiety and depression well and sought treatment at times of higher distress. Ms R noted an improvement in the wife’s mental health after separation (notwithstanding the stress of separation from her children and these proceedings).
The evidence suggests that in July 2020 the tension in the parties’ household was high and the children were exposed to conflict between their parents. The wife does not shy away from the fact that the children were witness to arguments and, while she does not have a good memory of the detail of events on 24 July 2020, she does not dispute that the children may well have heard her speak about a desire to kill herself (or perhaps an expression that she wished she were dead). Counsel for the husband properly conceded that the precise expression was not material since either may be regarded as an expression of suicidal ideation.
Ms R was asked questions about the wife’s threats of self-harm during cross-examination by counsel for the ICL. Ms R indicated that the wife has expressed thoughts about wanting to die or be dead but not about a method or plan. Ms R indicated that the wife’s expressions were in the context of her not feeling that she had worth, colloquially that she would be better off dead. The trigger to the wife’s feelings of worthlessness was said to be her experience of being belittled by her husband. Ms R identified that the wife did not experience the same feelings in the workplace or amongst her social networks. It follows and is consistent with the opinion of the wife’s treating psychologist that the wife is less likely to experience suicidal ideation now that the relationship with the husband has concluded.
Ultimately, the evidence which deals with the wife’s mental health is relevant only in so far as it establishes or fails to establish a deficit in her parenting capacity or establishes or fails to establish that her health places the children at risk of harm (which cannot be ameliorated by appropriate orders). The wife has appropriate supports in place. The wife’s mental health has improved since separation. The wife’s treating psychologist and the single expert raise no concerns about her health placing the children at risk of harm.
One of the issues that arose for the children in the period between separation and the hearing was a concern that they ought not eat the food their mother had prepared for them. It was not plain at the commencement of the hearing whether or not the husband was alleging that the wife had deliberately or inadvertently caused the children to become ill from her cooking. In the husband’s affidavit he reported that from April 2021 the children had told him that the food in the wife’s household “tasted funny” was “not cooked properly” or “mouldy”. It is not clear that the husband raised this issue with the wife at that time. On 18 September 2021, following the children having spent time with the wife, the husband indicated X returned with tummy pains and feeling unwell. Y reported “the food tasted terrible and bitter like something bad was in it. So I didn’t eat it. I haven’t eaten anything all day. I’m really hungry”. The husband said that X had vomited. The husband raised this issue with the wife by text message and followed up with a letter from the husband’s lawyers to the wife’s lawyers. The text messages between the parties were curious given the husband’s affidavit evidence. The husband sent a message to the wife at 10.10 pm:
Our children came back feeling ill. [X] has been vomiting and just got to sleep. [Y] was also feeling ill but didn’t vomit and fell asleep at 9.15pm. I’ll update you on their health tomorrow.
In circumstances where Y had not eaten but both children felt ill, it is curious that the husband believed that it may have been food poisoning. The wife confirmed that X had eaten but Y had refused to eat. The husband sent a text message to the wife when he delivered the children the following day:
Just dropped them with you. [X] was unwell and slept until 9am. They wanted to bring sandwiches and snacks with them. They had food poisoning overnight so will need to drink plenty of water today.
It is difficult to understand how the husband could have concluded that what had caused the issue was food poisoning in circumstances where the children had not consumed the same food and he had made no enquiries of the wife as to whether or not she had herself exhibited any symptoms.
In providing the children with sandwiches and snacks, the husband was signalling to them that they ought to avoid eating the food in the wife’s household. He had already been told that Y had been refusing to eat. The husband was sending both of the children a message that there was something wrong with the food provided by the wife. The husband’s text message indicating that both children were unwell was inconsistent with his affidavit evidence to the effect that Y was not sick on 18 September 2021.
The husband’s affidavit material said “I deny that I have encouraged the children to refuse Ms Sanders’ cooking”. This is characteristic of the husband’s approach to the issues in this case. He is unable to understand that in providing the children with lunch and snacks, he is sending the message to the children that it is appropriate to refuse the food prepared by their mother.
On 29 November 2021 the husband took Y to the Emergency Department at U Hospital. Y was said to have experienced abdominal pain for five days. When Y was not present the records suggest that the husband raised with the nurse undertaking the initial assessment a concern that “[the] mother may be ‘poisoning’ child – states child is waking up with night terrors, complaining that food at mums ‘tastes funny’”. The Emergency Department staff involved the hospital social worker whose notes contain the statement:
…[father] believes it possible that Mum may be poisoning [Y], he has returned from visits 5 or 6 times previously with symptoms of stomach pain, dizziness, “fuzzy skin” like “creepy crawlies”… Sons have largely stopped eating any food at Mum’s, have also complained that food is “bitter”.
When the husband gave his oral evidence and in the notes of the Department of Communities and Justice, the husband also raised concerns about whether the wife may be giving the children medications prescribed for her use. This is a serious allegation with no objective evidence to support it. I find that the father’s conduct has had an impact on the children’s time with and relationship with their mother.
Evidence relied upon by the husband was not critical of the parenting provided by the wife to the children until about September of 2017. The husband gave evidence that from about 2017, the wife complained about Y’s misbehaviour and in particular indicated to him that Y was hyperactive and would not listen. The husband says that the children began to express to him concern about the wife’s moods and outbursts. It is plain that in 2017 the husband says there was an issue as between the children and the wife which led to disagreements when the children were disobedient.
It is important to understand that in the period between X’s birth and 2017, the husband acknowledges that the majority of care for the children was undertaken by the wife.
It is plain that Y has exhibited behavioural difficulties. The wife gave evidence that she had endeavoured to obtain assistance for him and felt as though the husband was not supportive of those efforts.
The husband’s brother, Mr W lived with the parties between November 2018 and November 2019. He gave evidence and was cross-examined in the proceedings. Mr W did not provide to the court any evidence supportive of the proposition that he had witnessed any issues as between the children and the wife or as between the parents during the period he resided in their home.
The husband dates an escalation in the issues in the household to a period after the return of his brother to the United Kingdom. As it transpired, that coincided with a period of time where the husband commenced to work from home full time and then eventually, due to Covid restrictions, all of the members of the household were present at all times in the same house. Under those pressures, the situation became more conflictual.
The difficulty with the approach taken by the husband is that he sought to attribute to the wife all of the consequences of this increasing conflict and hostility as between them. The husband was unwilling or unable to understand any role that he may have played in the conflict between the parties and its escalation. The wife gave evidence that the husband would shout at her saying “you stupid woman”, “what’s wrong with you woman”, “you’re useless”, “you’re crazy”, “you are always making mistakes”, “your job is a pastime not a job”, “you never had a proper career”, “you need to lose weight”, “I think you’re fat” and “you smell bad”. The husband for his part denied that he had made such comments to the wife. The difficulty with this denial is that whilst the parties were in a relationship, the wife consulted two clinical psychologists. The first of those was a psychologist by the name of Ms AA (“Ms AA”). In Ms AA’s clinical notes for 2 December 2016, she records the following:
What I could say
When Mr Sanders says What I could say You’re a size 16 We’ve both put on weight. Do you think we could start a health drive?
Honey I don’t know what you’re trying to achieve but THAT IS NOT HELPFULYou’re broken (haven’t you taken your pills yet?) That is not respectful communication
We are TWO EQUAL ADULTS – a man and a woman – different but equalYou behave like a child We both have areas of growth
There can be little doubt that the wife experienced the relationship with the husband as difficult. She described to her General Practitioner over an extended period, finding the husband’s nit-picking increased her anxiety. She gave examples to her General Practitioner of the husband finding fault with her actions such as not replacing the remote control in the correct place. She described the husband to her psychologist during sessions while the parties were together as very aggressive and blaming.
As early as 2013 the wife described the husband as “controlling, dominant, aggressive (verbally) and passive aggressive, doesn’t try to understand things from my point of view, wants his own way, holds onto anger for a long time, treats me like a child at times, blames me for everything, lazy around the house, high expectations of me, and [he has] double standards. If you don’t agree with him you aren’t listening”. In the same session with her then psychologist, she also acknowledged her husband’s strengths including as a parent.
I find that the contemporaneous records support the evidence given by the wife that the husband made comments to the wife during the relationship which undermined her self-esteem and which she experienced as abusive. The comments in the contemporaneous records are similar in nature to the matters in the wife’s affidavit and consequently on balance I accept her evidence about the manner in which she says the husband spoke to and about her.
It is significant that the wife’s mental health seems to have improved as a consequence of the end of the parties’ relationship (notwithstanding the significant stress occasioned by these proceedings).
Nature and characteristics of the children
At the time of the hearing, Y was aged 11 and was a Year 6 pupil at D School where his academic performance measured by his school report appeared sound. He has experienced behavioural difficulties which predate his parents’ separation. His mother sought assistance for him from the General Practitioner in August 2019. Those behavioural difficulties continue. Since separation, Y has injured himself and his father and bitten his brother.
X is a child who while not formally diagnosed, was identified by the psychologist Ms Z as potentially neurodiverse. During the hearing he turned 13. He is in Year 8 at B School. His school report indicates he is academically successful. He has had problems at school particularly in the area of engagement with peers.
The parenting orders to be made need to be made with the special characteristics of these children in mind.
Views of the children
Y and X are 11 and 13 years of age. Ordinarily the Court, when considering the views of children of 11 and 13, would accord those views some significant weight. However, the Act specifically acknowledges that the weight to be given to the views of children must appreciate not just their ages but their maturity and the circumstances in which the views have been formed: s 60CC(3)(a) of the Act.
The parties were not significantly at odds about the children’s expressed views. But it is significant to see how those views emerged over time.
Y and X attended a session with the school counsellor at D School on 12 August 2020 (two days prior to the wife’s discharge from the T Clinic). The counsellor records the following:
When asked they both could tell [the school counsellor] that their mother was at the [T Clinic] stating because she was very stressed. The boys acknowledged that their parents had been arguing and their mother said some mean things to their dad, which she later apologised to them about.
…
Both boys reported they [had] been sleeping well and eating well. [X] stated that he has probably been eating more than usual. They stated that their dad has been picking them up from school and taking them to their usual after school activities. They stated that usually their mother would take them. They have spoken to their [mother] each night usually on her computer.
On a scale of 1 – 10 [Y] stated he often feels a 3 and [X] stated he often feels a 2.(1 is not worried at all and ten is very worried). When worried [Y] plays with his lego or watches TV to distract himself. [X] focuses on his breathing.
The husband does not provide that reassurance to the children. In so doing, he further undermines the children’s relationship with their mother and ironically, as the single expert observed, he may be also taking actions which will ultimately impact on his own relationship with the children.
The husband did not want to facilitate the children’s time with the wife at Christmas 2021 notwithstanding the existence of a consent order. When he emailed Ms M on 16 December 2021 he said “X and Y said they will try to spend time with Ms Sanders but “…she doesn’t deserve Christmas Day””. Ms M gave powerful evidence that she had spoken to the husband about his concerns that the children would find spending Christmas time with the mother difficult. Ms M gave the following evidence:
I said to him that I didn’t hold those concerns because I had seen them in her care in her house without her there and I found them to be happy, giggling, telling jokes, having fun and they were fine. I was confident that they were fine and I told [Mr Sanders] this. He became very angry that I was lying to him, said it was not possible, that he didn’t believe it, he couldn’t understand what my motive was to be saying something so unfair and untrue and at the end of about 5 minutes of this I stood up and said I think it was time for him to leave with the boys.
When asked the following question “when you had been discussing Christmas, were you surprised at how angry he became?” Ms M replied:
I was, he was highly agitated he was shouting, “I don’t believe you you’re lying, why would you say this, you’re making this up”, about the discussion following Christmas that I had spoken to the boys and had no concerns about their safety with the mother because I had seen them being safe and happy with their mother. I was surprised.
Dr O gave evidence that he was mindful of the fact that the husband was the singular voice standing alone from all of the other voices (including Dr O’s own). He remarked that those other voices were all people who are aware of the need to take a best interests, rather than a partisan, approach. Rather than listen to their perspectives the husband has adopted an adversarial position. For example, the husband was suspicious of Ms Z’s desire to speak with other stakeholders who may have information which would be relevant to her in her role assisting the children.
Another aspect to the husband’s presentation was that he could not accept that others did not share his concerns and/or had not made reports. He was at pains to inquire whether the Principal at D School had made a mandatory report and when he found out she had not, he told the Principal he would take it further and make a legal complaint.
Either as a consequence of the husband’s inability to process objective evidence concerning the wife’s health, the children’s safety or otherwise, he was unable to, in the period since separation, effectively support the children’s relationship with their mother. He told the Court during cross-examination that he was no longer able to convince the children to see or spend time with their mother.
The husband is supported in his views by his own mother who, when asked if the children enjoyed spending time with their mother, responded: “when she’s not horrible to them”.
The husband has also been assisted since separation by his neighbours Mr L and Ms K. Ms K gave evidence she has been prepared to allow the children to leave the wife’s home and come to her home. Even if well intentioned, this arrangement has reinforced the children’s view that time with their mother is optional and they can leave if they choose. It is the husband’s responsibility to inform his friends that the orders are to be obeyed.
If the husband were capable of taking on external advice and opinion, then he would be able to acknowledge that the orders for time between the children and the wife that he asks the Court to make, are inadequate to the task of improving the children’s relationship with their mother and fall short of ensuring that the relationship is a meaningful one.
The consequences of the husband’s inability to support the children’s relationship with the wife are seen in their increasing reluctance to see her. They have taken on their father’s narrative that their mother poses a risk to them. They have learned that their father is only interested in reports about time spent with their mother if they accord with his narrative. The most telling example of this arose from the evidence of Ms M. Ms M gave an example of work that she had undertaken with the children. When the children said to her “Mummy’s not a good housekeeper. Mummy’s not a good cook” she asked them what they liked that the wife cooks and they responded “bacon and egg rolls”. Ms M fed back to the mother that the children would appreciate a bacon and egg roll and so the mother made them bacon and egg rolls on their next visit. When the children saw Ms M on 12 November 2021 they told her “Mummy’s not actually a bad cook after all, don’t tell daddy we liked the bacon and egg roll”.
This example illustrates two things – firstly Ms M’s skill as a family therapist but secondly and tragically, the children are now developing internal conflict born out of their divided loyalties. Lest the bacon and egg roll example appear to trivialise the situation Ms M also referred to the work she had undertaken with the children and the wife around Y feeling as though he did not have enough of his mother’s attention. The wife took on board the observation and the children reported to Ms M on their next session that “Mummy was nice, we laughed a lot”. But X also reported “I don’t think it is sustainable…we don’t believe it’s real”. Ms M said both boys then went back and reiterated that “we don’t want to go to mummy’s anymore we want to see her less”.
The husband has consulted an experienced clinician, Mr FF (“Mr FF”). There was no report from Mr FF before the Court. If the husband continues to consult Mr FF, it would be of utility to the work they undertake if Mr FF is provided with a copy of these reasons for judgment. It is suggested that Mr FF may be able to assist the husband with what Dr O described as the husband’s “elevated rigidity”. Any assistance the husband receives will ultimately assist the parties’ children. I will make orders that permit the husband to provide these orders and reasons to any treating practitioner but it will be a matter for the husband as to whether he chooses to provide them.
Other than as set out above, there is no suggestion that the husband’s parenting capacity was not good.
Parental capacity: the wife
The wife’s health was central in the proceedings. It is useful to consider its relevance to the determination of competing parenting applications by understanding how the wife’s health during the relationship may have impacted on the children (at the time and subsequently) and separately, to consider what the evidence demonstrates about her current state of health and whether the evidence suggests that the wife’s health places the children at risk.
The wife’s affidavit material sets out the care arrangements for the children during the parties’ intact marriage. She says that she was primarily responsible for the care of the children while the husband was working. Her evidence says that the husband travelled frequently for work including two periods of six months each where he worked interstate, returning on weekends. The husband’s frequent flyer statements support this submission. By inference, he was content that the children were well cared for and safe in his absence.
When the husband’s brother, Mr W, was asked in cross-examination to identify the wife’s strengths as a parent, having previously lived with the family for a year, he responded that she was patient.
From 2018 to the beginning of the Covid lockdown in 2020, the wife says that the husband worked long hours leaving around 6.30/7.00 am and returning around 9.00/10.00 pm most days during the week.
In assessing whether or not the wife’s mental health posed a risk to the children whilst the relationship was on foot, it is important to have regard to the objective evidence about who was undertaking the caring responsibility. The wife annexed to her affidavit a social media post from the husband dated 25 June 2015 which read:
So happy to have finished a work project this week. For the past few months I’ve been up at 4am on the first 6am flight to Melbourne every Monday morning, and back home in Sydney at 9pm at the end of the week… and working 14 hour days in-between. Exhausted! I’m having a nice drink tonight :).
That social media post is consistent with the wife’s affidavit evidence to the effect that the husband’s work took him interstate for lengthy periods of time, returning only on the weekends. The wife had the sole care of both children throughout the school week, noting the ages of the children in 2015. The wife also relied on a similar post dated 13 February 2013 which read:
Yawn!! Up at 4am to catch a domestic flight to Melbourne. Have to spend a few days explaining my work to a colleague, then back in Melbourne next Thursday to present to the client. For the past month I’ve been analysing 2 years of [KK Company] […] data – yep EVERYTHING […].
The wife relied on another similar post dated 8 June 2011and a text message from 18 May 2015 together with text message communication between the parties in July 2019 and May 2019.
Further indication of the parenting arrangements in existence prior to the parties’ separation is contained in the text message communication annexed to the wife’s affidavit between her and various parents of the children’s friends. The wife facilitated play dates for the parties’ children and hosted children from the local neighbourhood. She appeared to be supported by the school community in the parenting of the parties’ children. The wife says that support for her has continued post separation. Regrettably, the manner in which the local community has perceived the conflict between the parties has had an impact on the children including loss of long term friendships.
The husband’s affidavit evidence is consistent with him having undertaken a substantial amount of work travel and he sets out overseas commitments undertaken in 2011, including three weeks in Country LL and a week in Country MM.
The husband’s affidavit material indicated that, to the extent that he is contending that the wife’s actions during the parties’ relationship placed the children at risk, this commenced after return of his brother to the United Kingdom in late November 2019. The wife for her part agreed that, in 2020, as the parties were required to spend extended periods of time under the one roof as a consequence of Covid restrictions, the situation in the parties’ home deteriorated.
On the basis of the parties’ evidence and that of Mr W, I can comfortably find that the wife undertook the majority of the care for the parties’ children at all times up to separation.
Compliance with Court Orders
The husband took the view that it was important to him to act in a way which was protective of his children even if that meant he did not comply with the obligations created by orders of the Court.
The husband indicated in his correspondence with Ms Z that he had never prevented the children from seeing their mother when they had wanted to see their mother. In his opinion he has been complying with the children’s expressed views each time he has failed to facilitate attendance upon their mother. The difficulty with this approach is that the decision as to whether or not time takes place pursuant to orders is not a decision to be taken by the parties’ minor children. Unless the children are in imminent danger of physical or psychological harm it is equally not a decision to be taken by the children’s parents unilaterally. The orders oblige the adult parties to comply with their terms. The husband’s history of non-compliance is part of the factual matrix taken into account by Dr O in forming the view that only orders which provide for a period of time during which the children live in the sole care of their mother, will be equal to the task of attempting to restore the children’s relationship with their mother. If the children continue to live or spend time with a parent who is not supportive of time occurring then there is nothing to suggest that the pattern which has been in place since separation will change.
The husband consented to orders on 2 December 2020. As discussed, by 16 December 2020 he decided it was not in the interests of the children that those orders be complied with. On 25 December 2020, those orders were not complied with. He then instructed his lawyers to write to those then acting for the wife on 4 February 2021 to indicate that, because the husband had been unable to contact the ICL to facilitate a meeting between the children and the ICL, the husband would not be facilitating time between the mother and the children. Again, it was not a matter for the husband to make a decision on 4 February 2021 as to whether he would comply with the orders. In a similar vein the husband sought to impose supervision of the wife’s time in circumstances where the existing orders did not provide for supervision.
In support of the position he adopted, the husband indicated that he was concerned about the mental health of the wife and the impact it had on the children. Attempts by the wife, via her lawyers, to reassure him that she was well, did not seem to persuade the husband.
Annexed to the husband’s affidavit are some of the text messages exchanged between him and the children. If they are indicative of the usual messages exchanged between them then they confirm the wife’s concern that the husband has not been reassuring or supportive of the children spending time with her. For example in the message which was sent on 2 January 2021, the husband says to Y “please send me a message to let me know you are ok”. The message itself seems to presuppose that there will be a reason why Y may not be okay. In a similar vein, when Y sends the message to his father “Can you come pick us up at the top of Mummy’s road[?]”, instead of writing back to Y and saying words to the effect of “no this is your time with your mother”, the husband responded “Is everything ok?”. Y is being given explicit permission to complain about whatever is happening in his mother’s household. He is being given tacit permission to leave his mother’s house.
The husband has received expert assistance which should have helped him to understand that he is contributing to his children’s concerns rather than reassuring them. The husband met with Ms GG, psychologist (“Ms GG”), on 29 January 2021 and she recorded:
[Mr Sanders] continues to be concerned for his children’s safety, believing that [Ms Sanders] is a danger to them.
I acknowledged his concerns however I let him know that after speaking with [Ms Sanders], I believed her to be capable of caring [for] her their [sic] children adequately. I also shared my concern that his belief that [Ms Sanders] was “unsafe” may be impacting their children’s beliefs about their mother, even if these messages from [Mr Sanders] were implicit.
The husband’s response to the feedback from Ms GG was that it made him angry because he believed his former wife was lying to Ms GG and she was not taking his concerns seriously. At the time of trial the husband agreed in cross-examination that the children are not at immediate physical risk of harm in the wife’s care. Although he subsequently back-pedalled from that answer. If it is his view that the children are safe then it is very important that he convey that to the children as plainly as possible.
There are a number of specific issues orders sought by the husband. I have made such orders where the parties are in broad agreement as to the utility of the order. There were some specific issues orders sought by the husband for which there was not specific evidence or submissions and subsequently I have declined to make those orders.
Both parents sought orders in respect of overseas travel. No specific submissions were made about this nor did the evidence suggest that a specific trip was planned. I am conscious that the maternal and paternal relatives live overseas. I am also conscious that I should make orders designed to finalise the proceedings and avoid the need for the parties to return to court.
I will make orders relating to the children’s passports, resident return visas and the Airport Watchlist. I will make an order that from the school holidays which commence December 2022, either parent be permitted to take the children outside Australia to a country which is a signatory to the The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
I have not made the precise orders sought by either the wife or husband in respect of special occasions as the focus of the orders I have determined to make has been on ensuring that the orders reduce conflict, manage changeover (given the previous history of contact refusal and absconding) and are capable of unambiguous interpretation. For that reason some of the special occasions will lie where they fall and the parent who does not have the children on that date will celebrate with them at the next available opportunity.
CONCLUSIONS: PARENTING
There are a number of factors in this case which support the necessity that the Court take definitive action and make orders without delay – designed to address the most serious parenting issue in this case – the state of the children’s relationship with their mother. As Dr O concluded, the Court has very few options in this case. Taken at his word, the husband says he agrees that the children deserve a meaningful relationship with their mother and will benefit from having such a relationship. It is plain that this goal will not be achieved unless a different approach is taken from the one which has prevailed since separation.
X is 13 years old. Unless orders are made which address his relationship with his mother now, the fear is that his age will mitigate against a solution. Y is younger. Dr O’s view is that spending uninterrupted time with the wife will assist. This was a view echoed by Ms M who noted that the children are highly distressed as are both parents. The boys, in her view need extended time with their mother to repair the relationship. It will be important for the children to understand that they do not have the option of returning to their father if they are bored or uncomfortable. Only if they are able to experience a more extended period of time in the care of the wife will it be possible for them to recognise for themselves that they are safe, that their mother is well and that they are loved by both parents. X once expressed to Ms Z that he wanted “more evidence that everything was OK” with his mother. That can only occur when he is spending adequate time in her care (which is not undermined by the husband’s fears).
It would not be possible to reach the above conclusion if the objective evidence supported the conclusion that extended time in the wife’s household placed the children at risk. The only identifiable risk to the children in the care of the wife under this scenario would be if they chose to abscond. Dr O expressed the view that these children were unlikely to choose life on the street (and to that extent he did not see that the orders proposed by the wife would place the children at risk). It is also significant to the conclusion about risk to observe that the children have not been exposed to any objective risk of harm while in the wife’s unsupervised care since separation.
The intention of the period where the children are in the sole care of their mother is, as discussed above, to assist them to recalibrate their relationship with her and for X in particular to be reassured by the passing of ordinary time in her care that he is not at any risk of harm. The ICL cross-examined the wife about how she saw this working and she suggested that a holiday away from her home with the children would be an appropriate circuit breaker for the wife and the children.
I must acknowledge that there is a possibility that these orders will not achieve the goal of repairing the relationship between the children and their mother. However, it is equally if not more clear, that a failure to take proactive measures will cement a circumstance which Dr O identifies as posing a medium to long term risk to the children’s wellbeing into adulthood.
The ICL sought that reintroduction of time with the husband occur unsupervised with shorter periods. I am making orders that the initial re-introductory sessions are supervised as a protection for the children against inappropriate discussions. As detailed above, the husband has shared his fears with the children in the past reinforcing their own – that cannot occur. After the period of supervised sessions I have ordered the time be a block from the conclusion of school until the commencement of school to minimise the opportunity for the children to decide they will remain in their father’s care at the conclusion of time as they will be required to go to school.
On 4 April 2022 I made orders requiring the parties to attend in person to receive judgment and requesting that they bring the children to the Court to facilitate the opportunity for the ICL to speak to the children about the orders and to provide the children with support from the court’s Child Court Experts in transitioning from the care of the father to the care of the mother. I did so in recognition of the fact that the history of this matter suggests the children will require the support of a Child Court Expert. Today I have made an order requiring the father to leave the court building and its vicinity. I did so on the basis that, for the orders to operate in the best interests of the children, the terms of the order must support the adults and the children to understand that orders are not optional suggestions or recommendations. There is a clear pathway set out in the orders designed to support the children’s relationships with each parent and the pathway will be undermined if there is non-compliance.
CONSIDERATION: FINANCIAL MATTERS
At the conclusion of the hearing the parties remained at odds about whether one item should be included in the “agreed balance sheet” as notional property – that is the $10,000 which the wife withdrew from her superannuation entitlements after separation.
In the ordinary course the court divides the assets of the parties. In an appropriate case it may be necessary to have regard to funds which no longer exist but have been spent by one or other of the parties in the post separation period. The question of whether to include a notional asset when considering the adjustment of the parties’ interests in the actual assets is a discretionary one.
In her affidavit material the wife deposes that she applied the $10,000 she withdrew from her superannuation to payment of bond, rent and establishment expenses. She was cross-examined about this evidence and it was put to her that she had in fact funded those expenses by drawing on monies in the bank accounts of the parties’ children. The wife withdrew $12,000 from X’s bank account and $12,000 from Y’s bank account on 23 August 2020. She replaced $10,000 in each account on 24 September 2020. Subsequently drawing down on those funds again at a later date.
The wife moved into rental accommodation on 30 August 2020. Ahead of that move she paid rent, bond and broadband deposit totalling $8,731. Those payments came out of her personal bank account into which she had transferred the children’s money.
The husband remained living in the former matrimonial home. The wife met her rent ($500 per week) from her income. The husband lived in the matrimonial home from 7 September 2020 until 6 September 2021 without making a payment towards the mortgage.
The $10,000 which the wife received from Super Fund 4 (“Super Fund 4”) on 7 September 2020 was deposited into her personal bank account. It was from that bank account that she reimbursed the children’s accounts on 24 September 2020.
While the wife may not have directly sourced the funds for her rent from the Super Fund 4 payment it is plain that she applied those funds to the expenses occasioned by the move from the former matrimonial home.
I find that in circumstances where the wife had the need to rehouse herself and the husband remained in the matrimonial home without meeting the mortgage payments, it would not be appropriate to include the money the wife withdrew from her superannuation as notional property and I do not intend to do so.
The parties did not agree about the inclusion of a number of liabilities. The husband sought to have included several debts said to be owing to the ATO and a credit card. The wife disputed the inclusion of a BAS payment for the company J Pty Ltd for the quarter ended 30 June 2021, estimated personal income tax for the husband for the financial year ended 30 June 2021 and for the financial year ended 30 June 2022. The wife agreed that the outstanding income tax for the financial year ended 30 June 2020 in the sum of $12,009 should appropriately be included as a liability. That figure was in the letter from the husband’s accountant which became exhibit QQ.
The husband’s financial statement recorded $6,285 in personal income tax owing in respect of the 30 June 2021 tax year and an estimated $59,558 as regards the financial year which will end 30 June 2022. These figures are said to be based on the husband’s estimates and those of his accountant. The accountant was not on affidavit.
Even if the husband’s estimates concerning tax are accurate, it does not follow that they should be taken into account effectively as liabilities of the parties. The wife has paid the tax on her income after separation. In that context, including the husband’s tax on monies earned by the husband after separation as a liability in the joint balance sheet, does not appear designed to do justice and equity as between the parties: s 79(2) of the Act. Certainly, the wife should have no responsibility for the taxation liabilities of the entity H Pty Ltd.
Accordingly, the assets, liabilities and superannuation of the parties to be taken into consideration when adjusting their interests are as follows:
| Ownership | Description | Applicant’s Value | Respondent’s Value | ||
| ASSETS | |||||
| JOINT | C Street, SUBURB E, NSW | $1,300,000 | $1,300,000 | ||
| RESPONDENT | H Pty Ltd. (ACN …) | $Nominal | $Nominal | ||
| JOINT | G Bank Savings Account (account number …35) | NIL | NIL | ||
| APPLICANT | CBA Account (account number …41) | $2,732 | $2,732 | ||
| APPLICANT | CBA Saver Account (account number) …68) | $52 | $52 | ||
| APPLICANT | HH Finance Card – subscriber no. …76) | $592 | $592 | ||
| APPLICANT | Westpac Account (account number …01) | NIL | NIL | ||
| APPLICANT | Westpac Account (account number …33 | NIL | NIL | ||
| RESPONDENT | G Bank Account (account number …12) | $3,981 | $3,981 | ||
| RESPONDENT | G Bank Account (account number …13) | $100 | $100 | ||
| RESPONDENT | Westpac Account (account number …65) | $100 | $100 | ||
| RESPONDENT | Westpac Account (account number …34) | $1,000 | $1,000 | ||
| RESPONDENT | Westpac Account (account number …42) | NIL | NIL | ||
| APPLICANT | CBA Account (X, account number …71, balance at 21 January 2022 was $1,006.69) | NIL | NIL | ||
| APPLICANT | CBA Account (Y, account number …98, balance at 21 January 2022 was $1,006.60) | NIL | NIL | ||
| APPLICANT | Motor Vehicle 2 | $2,600 | $2,600 | ||
| RESPONDENT | Motor Vehicle 1 | $6,000 | $6,000 | ||
| APPLICANT | Interim property distribution for Applicant | $30,000 | $30,000 | ||
| RESPONDENT | Interim property distribution for Respondent | $25,000 | $25,000 | ||
| Total: | $1,372,157 | $1,372,157 | |||
| LIABILITIES | |||||
| RESPONDENT | Westpac Home Loan Account (excluding portion of refinance obtained for Husband's legal fees identified at point 27 below) Total amount owing $549,156. | $399,156 | $399,156 | ||
| APPLICANT | Q Finance (F Bank – total inclusive of interest is $183,131.24 – legal fees) | NIL | NIL | ||
| APPLICANT | Personal loan from Mr P & Ms P (GBP3,000/AUD5348.70 – legal fees) | NIL | NIL | ||
| | | | | ||
| RESPONDENT | Westpac refinance ($150,000 – loan for legal fees) | NIL | NIL | ||
| RESPONDENT | Personal Loan from parents ($30,857 owed – legal fees) | NIL | NIL | ||
| RESPONDENT | Outstanding legal fees owing to JJ Lawyers ($20,106 – legal fees) | NIL | NIL | ||
| RESPONDENT | Income Tax 551 (FY 2020) | $12,009 | $12,009 | ||
| | | | | ||
| | | | | ||
| | | | | ||
| Total: | $411,165 | $411,165 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicant’s Value | Respondent’s Value | |
| APPLICANT | Super Fund 4 | Accumulation | $91,063 | $91,063 | |
| RESPONDENT | Super Fund 2 (formerly Super Fund 3) | Accumulation | $207,679 | $207,679 | |
| RESPONDENT | Super Fund 1 Service Superannuation fund | Accumulation | $135,660 | $135,660 | |
| Total: | $434,402 | $434,402 | |||
CONCLUSIONS: FINANCIAL MATTERS
I have read the evidence of each of the parties about their financial and non-financial contributions over the cohabitation period of about 16 years. The husband says he had savings and superannuation at the commencement of the relationship. The wife does not agree that the husband had the savings he asserts or that his superannuation balance was $60,000 (in circumstances where they had recently migrated). Neither party (unsurprisingly) has documentation about their financial circumstances at precisely the commencement of the relationship. On balance I accept that the husband had some savings and superannuation which were of value and that his asset/superannuation position at the beginning of the relationship was superior to that of the wife. The husband also gave evidence about a gift from his family of $10,000 and a contribution his family made to the costs of the parties’ wedding. I take those sums into account when assessing the overall contributions.
I have to place the evidence about the parties’ contributions at the commencement of the relationship in the context of their respective contributions throughout this relationship and in the post-separation period.
Each of the husband and wife made equivalent contributions to one another, both financial and non-financial during the relationship. The husband made the majority of the financial contributions and the wife the majority of the non-financial contributions but each contributed in both spheres.
In the post-separation period the husband made a greater parenting contribution as a consequence of the parenting arrangement in place during that period and has been primarily responsible for the children’s financial support.
Having had regard to the different contributions, I assess the contributions of the parties from the relationship’s inception to the time of hearing slightly favour the husband. Having regard to the parties’ contributions the husband should receive 52 per cent of the assets.
Having made an assessment of the parties’ respective contribution based entitlements I must consider whether it is necessary, in order to make orders which are just and equitable, to make any further adjustment to take into account the parties’ current and future financial positions.
I find that the husband’s income and earning capacity is superior to that of the wife. The wife has undertaken part-time and casual work and has had time out of the workforce after the births of the parties’ children.
There should be an adjustment to take into account the orders which are to be made providing for the children to live with their mother.
The parties have agreed to orders for superannuation splitting such that $50,000 of the husband’s entitlements in the Super Fund 1 will be split into a superannuation account of the wife. The parties agreed to this figure and the trustee of the fund was afforded procedural fairness. That will leave the husband with about twice the superannuation entitlements of the wife.
The above factors should result in an adjustment to the wife of 10 per cent. Overall the agreed assets, liabilities and superannuation should be divided so as to provide that the wife receives 58 per cent of the net pool (and the husband receives 42 per cent). That requires that in addition to the agreed superannuation split the husband should pay to the wife the sum of $632,290 or in default there should be a sale of the Suburb E property.
The effect of the above findings is that the assets, liabilities and superannuation should be divided as follows:
Husband receives Wife receives Asset Value Asset Value C Street, Suburb E 1,300,000 CBA Account (account number …41) $2,732 G Bank Account (account number …12) $3,981 CBA Account (account number) …68) $52 G Bank Account (account number …13) $100 HH Finance Card – subscriber no. …76) $592 Westpac Account (account number …65) $100 Motor Vehicle 2 $2,600 Westpac Account (account number …34) $1,000 Interim property distribution $30,000 Motor Vehicle 1 $6,000 Payment from the husband $632,290 Interim property distribution $25,000 Total Assets $1,336,181 Total Assets $668,266 Liabilities Value Liability Value Westpac Home Loan Account $399,156 Income Tax ye 2020 $12,009 Payment to the wife $632,290 Total Liabilities $1,043,455 Total Liabilities NIL Superannuation Value Superannuation Value Super Fund 2 (formerly Super Fund 3) $207,679 Super Fund 4 $91,063 Super Fund 1 Service Superannuation fund $85,660 from husband’s superannuation (Super Fund 1 fund) $50,000 Total Superannuation $293,339 Total Superannuation $141,063 Net Assets received $586,065 Net Assets received $809,329
The wife will be required to repay the funds belonging to the parties’ children from the funds she receives from the husband. Each of the parties have outstanding debts for monies borrowed to pay legal fees.
As sought by each of the parties if the husband does not or cannot comply with the orders releasing the wife from obligations under the Suburb E mortgage then the Suburb E property will be sold. Since the husband seeks to retain the Suburb E property he will be responsible for the costs of sale if sale is required.
The wife sought orders that if there was a default sale then she should receive a portion of any amount over the agreed value of $1,300,000 but she did not seek that there be a corresponding decrease if the property sold for less than $1,300,000. If the property is sold there will be costs of sale. No party made submissions on the default provisions and I find that it is appropriate that the wife receive a sum certain. If the property sells for more than the parties agreed, the husband will only be advantaged if it is a sufficient amount to cover all of the costs of sale. In circumstances where the wife did not seek orders in the reverse (and in the absence of submissions) I will make an order that she receive a sum certain.
I am satisfied that the resulting financial orders are just equitable and otherwise proper: s 79(2) of the Act.
I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 April 2022
- AGLC
- Sanders & Sanders [2022] FedCFamC1F 213
- Case
- [2022] FedCFamC1F 213
- Decision Date
CaseChat Overview and Summary
The court had to decide several critical issues, including the division of the parties' property, the allocation of parental responsibility, and the best interest arrangements for the children. Given the wife's history of depression and anxiety, as well as allegations of family violence, the court had to balance these factors against the children's need for a stable and meaningful relationship with both parents.
The court ruled in favor of the wife, awarding her sole parental responsibility and primary care of the children. It ordered that the children live with the wife and have no contact with the husband for three consecutive months. Following this period, the husband was allowed supervised visits and alternating weekend visits during school terms, along with extended time during school holidays. The court emphasized the importance of the children spending uninterrupted time with their mother to repair their relationship. The court also made detailed orders regarding the division of property, financial contributions, and the children's access to their personal items and educational materials. Additionally, the court mandated family therapy and prohibited the parents from making derogatory remarks about each other in front of the children.
Orders
Orders of the court
SYC 7660 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SANDERS
Applicant
AND:
MR SANDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
PROPERTY
1. Within 42 days of the date of these orders the following shall occur simultaneously:
(a) Mr Sanders (“the husband”) do all things and sign all documents necessary to cause Ms Sanders (“the wife”) to be removed as guarantor of the mortgage to Westpac Banking Corporation secured against C Street, Suburb E, NSW being the whole of the land contained in folio identifier … (“the Suburb E property”) and the husband shall thereafter indemnify the wife in respect of this mortgage.
(b) The husband pay to the wife or as she may direct the sum of $632,290.
(c) The wife do all things, sign all documents and pay all such monies necessary to cause caveat …70 lodged by F Bank to be removed at her cost. In the event the wife fails to comply with this order, any funds necessary to be paid to cause the removal of caveat …70 will be paid from the funds payable to the wife pursuant to Order 1(b) above, and the balance of the funds thereafter shall be paid to the wife.
(d) The parties do all things and sign all documents necessary to transfer the wife’s right, title and interest in the Suburb E property to the husband and the husband will thereafter solely retain this property to the exclusion of the wife.
2. In the event the husband fails to make the payment to the wife as required by Order 1(b), provided that the failure is not the result of non-compliance by the wife with Order 1(c) above, then within 14 days of the husband’s failure, the parties do all things and sign all documents necessary to cause the sale of the Suburb E property and the following shall apply:
(a) The Suburb E property be listed for sale by private treaty, with an agent as agreed between the parties, and failing agreement:
(i) The husband will nominate three agents and within seven days of the husband nominating three agents the wife shall select one of the nominated agents to act and that agent shall be appointed by the parties.
(ii) In the event the wife fails to select an agent pursuant to Order 2(a)(i) above, the agent will be nominated by the husband and shall be appointed to act on the sale.
3. The listing price of the Suburb E property be as agreed between the parties and, failing agreement, shall be nominated by the real estate agent.
(a) The parties instruct a solicitor/conveyancer to have the conduct of the sale of the Suburb E property and the costs of and incidental to such appointment are to be borne equally by the parties as and when same fall due and for this purpose:
(i) The husband will nominate three solicitors/conveyancers and within seven days of the husband’s nominations, the wife shall select one of the nominated solicitors/conveyancers to act and they shall be appointed by the parties.
(ii) In the event the wife fails to select a solicitor/conveyancer pursuant to Order 3(a)(i) above, the solicitor/conveyancer will be nominated by the husband and shall be appointed to act on the sale.
4. In the event the Suburb E property has not been sold within three months of the date the property is first listed for sale, the parties do all things and sign all documents to procure a sale by public auction of the Suburb E property upon the following terms:
(a) The auctioneer shall be appointed by the agent;
(b) The auction shall take place within 30 days;
(c) The reserve price, unless agreed upon by the parties, shall be nominated by the agent;
(d) The husband shall be responsible for the auctioneer’s expenses as and when they fall due.
5. In the event the Suburb E property does not sell at auction pursuant to Order 4 above, the property shall be re-listed for auction within a further two months of the date of the previous auction, with a reduced reserve price as agreed upon by the parties, and failing agreement as nominated by the agent.
6. In the event that a sale cannot be effected in accordance with Order 5 above, the Suburb E property shall continue to be re-listed for sale in accordance with the provisions of Order 5.
7. Upon settlement of the sale of the Suburb E property the proceeds of the sale shall be applied in the following priority:
(a) Agents costs and commission;
(b) Legal costs incurred on the sale;
(c) Such sum as is required to discharge the mortgage secured against the property, being registered mortgage …15;
(d) Such sum as is required to cause caveat …70 lodged by F Bank to be withdrawn (pursuant to Order 1(c));
(e) That following the payments pursuant to Orders 7(a)-7(d) above, the net balance shall then be distributed as follows:
(i) $632,290 to the wife or as she may direct, less any amounts paid pursuant to Order 7(d), to cause caveat …70 lodged by F Bank to be withdrawn;
(ii) The balance to the husband or as he may direct.
8. Within 14 days of the date of the making of these orders the parties shall do all things and sign all documents necessary to close any joint bank accounts with the balance of the accounts to be equally divided between the parties.
9. Forthwith from the date of these orders and in relation to the following accounts, the wife shall hold all monies in trust for both X (born 2009) and Y (born 2010) (“the children”) until they attain the age of 18 years respectively, and within seven days of each child attaining 18 years of age, the wife shall pay to the child all monies held in trust on his behalf, including any interest accrued to the following accounts:
(a) CBA Account (account number …71) – X; and
(b) CBA Account (account number …98) – Y.
and the wife shall not access these monies unless otherwise agreed between the parties in writing.
10. Within seven days of receipt of funds pursuant to order 1(b) or 7(e)(i) the wife shall:
(a) Deposit the sum of $12,000 into CBA Account (account number …71); and
(b) Deposit the sum of $12,000 into CBA Account (account number …98).
11. Orders 12 to 15 below are binding on the trustee of Super Fund 1 (“the fund”).
12. In accordance with s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $50,000 (“the base amount”) is allocated to the wife out of the husband’s interest in the fund, member number 16208671.
13. Pursuant to s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the husband in the fund:
(a) The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount; and
(b) The entitlement of the husband in the fund (or the entitlement of such other person who becomes entitled to receive payment out of the husband’s superannuation interests) is correspondingly reduced by this order.
14. The Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act, the entitlement awarded to the wife in the immediately preceding clause of this order (Order 13); and
(b) Pay the entitlement whenever the trustee makes a split payment from the husband’s interest in the fund.
15. Order 12 has effect from the operative time and the operative time is the beginning of the fourth business day upon which a copy of these orders is served upon the Trustee.
16. The solicitor for the wife shall cause a sealed copy of these orders to be served upon the Trustee of the fund.
17. Except as otherwise provided for in these orders, the husband be solely entitled to the exclusion of the wife to the following:
(a) All bank accounts in the husband’s name or control;
(b) All motor vehicles in the husband’s name or control;
(c) The husband’s interest in H Pty Ltd;
(d) All furniture and contents of the Suburb E property;
(e) All superannuation in the husband’s name or control subject to these orders;
(f) All other property and financial resources in the title, possession and/or control of the husband as at the date of the making of these orders.
18. Except as otherwise provided for in these orders, the wife be solely entitled to the exclusion of the husband to the following:
(a) All bank accounts in the wife’s name or control;
(b) All motor vehicles in the wife’s name or control;
(c) All superannuation in the wife’s name or control subject to these orders;
(d) All other property and financial resources in the title, possession and/or control of the wife as at the date of the making of these orders.
19. The wife is solely liable for any debt or fees owing to F Bank and will forever indemnify the husband in relation to this liability and in relation to any claims arising from F Bank in relation to the loan provided to the wife.
20. Otherwise each party shall forever indemnify the other in relation to the property they are to retain pursuant to these orders and in relation to any liabilities in their name not dealt with by these orders, including but not limited to any liabilities, taxes, and claims of whatsoever nature.
21. In the event that either party fails, refuses or neglects to sign any deed or instrument required to give effect to these orders then the Registrar of this Court is hereby empowered pursuant to s 106A of the Act to sign that deed or instrument in the place of the party in default and to do all acts and things to give that document full force, effect and validity.
PARENTING
22. The wife have sole parental responsibility for the children X (born 2009) and Y (born 2010) (“the children”).
23. The children live with the wife.
24. For three consecutive months the children have no contact with the husband.
25. The husband is restrained:
(a) Following delivery of judgment, from remaining within 97-99 Goulburn St, Sydney (the Lionel Bowen Court Building) and shall ensure that he remains outside a 500 metre radius of the building from noon on 7 April 2022 for the remainder of that day; and
(b) From contacting the children or responding to any contact from the children or causing any other person to make contact with the children on his behalf, for a period of three consecutive months.
26. If the husband complies with Order 24 and Order 25, the children are to spend supervised time with the husband each Saturday for four consecutive Saturdays for up to four hours, supervised by an agency agreed between the parties and absent agreement, nominated by the wife.
27. The costs of supervision be paid by the husband.
28. Following the time in Order 26 the husband spend time with the children during school terms each alternate weekend from Thursday after school to Monday before school.
29. If the husband complies with Orders 24, 25, 26 and 28, commencing in the September 2022 school holidays, the husband spend time with the children in the second half of each school holiday period, commencing at 10.00 am on the middle day of the holidays or if there are two middle days, the first of those days and concluding at the commencement of school.
30. At the conclusion of the period in Order 24, the husband is restrained from approaching the children during periods of time they are in their mother’s care under these orders except for the purpose of attending school or extra-curricular events for the children to which parents are ordinarily invited.
31. Notwithstanding anything in these orders the children shall spend time as follows:
(a) With the mother for the weekend of mother’s day from after school Friday to before school Monday;
(b) With the father for the weekend of father’s day from after school Friday to before school Monday;
(c) With the father from 9.00 am to 8.00 pm on 25 December in every odd numbered year.
32. Within 24 hours of the date of these orders the husband shall deliver to the wife’s nominee at a location nominated in correspondence from the wife’s lawyers the following items (if they are not already with the children):
(a) The children’s mobile telephones;
(b) The children’s iPads;
(c) The children’s school uniforms, homework and IT equipment required for school; and
(d) Such other items which in the opinion of the father will be required by the children.
33. A copy of these orders made be provided by either parent to:
(a) B School;
(b) D School;
(c) Or such other school as the children or either of them may attend; and
(d) Ms K and Mr L.
34. Either parent may provide a copy of these orders and the reasons for judgment to any treating practitioner (psychiatrist, psychologist, counsellor, therapist, clinical social worker) consulted by either parent or either child.
35. The children and the husband and wife (“the parents”) continue to attend upon Ms M of the N Services (or in the event that she becomes unavailable, a family therapist selected by the wife) (“the family therapist”) for the purposes of engaging in family therapy and in that regard:
(a) Therapy will be at such frequency as recommended by the family therapist NOTING that the recommendation of the single expert, Dr O, was that therapy should occur not less than once per week when the children first commence living with their mother;
(b) The wife will make herself and the children available for family therapy as directed by the family therapist;
(c) The wife will engage with any other therapy that might be recommended by the family therapist from time to time including intensive in-home family therapy in the event the family therapist considers such therapy necessary.
36. The wife forthwith upon the making of these orders engage a psychologist for each of the children and thereafter comply with the directions of that psychologist.
37. The parties share the costs of family therapy and the children’s psychologists equally.
38. The Court requests the Australian Federal Police forthwith remove the names of the children X (born 2009) and Y (born 2010) from the Family Law Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
39. Commencing with the school holidays in December 2022, either parent be permitted to travel with the children outside the Commonwealth of Australia on the following conditions:
(a) Travel takes place during that parent’s time with the children (or with consent in writing);
(b) A detailed itinerary of the proposed travel including but not limited to, the departure date and return date, and a list of all countries the children will be travelling to (including details of any stopover destinations) be provided to the other parent 28 days prior to departure;
(c) A copy of flight (and/or any other mode of travel) information during the period of travel, including but not limited to return airline tickets be provided to the other parent within 2 days of the booking being made;
(d) Contact details for the children for each destination in which the children travel to (including a telephone number and address) be provided to the other parent 7 days before departure;
(e) That such travel is limited to countries as identified by the Attorney-General’s Department, “Hague Convention on the Civil Aspects of International Child Abduction”, unless otherwise agreed between the parents in writing;
(f) That the travel destination is not classified as “Level 2 – Exercise a high degree of caution” (or any higher category) by the Department of Foreign Affairs and Trade, as at the date of the intended travel.
40. Within 21 days from the date of these orders, both parents shall do all acts and things and sign all documents necessary to ensure that the children have a current United Kingdom passport, with the cost of any passport and any renewal to be borne equally between the parents.
41. The parties do all things and sign all documents so that the wife and the children can travel outside of Australia, including seeking a resident return visa and that the children be awarded Australian citizenship and thereafter both the parents shall do all acts and things and sign all documents necessary to ensure that the children have a current Australian passport, with the cost of any passport and any renewal to be borne equally between the parents.
42. Within 72 hours of the making of these orders, any and all passports held by the husband, including but not limited to Australian Passport(s) and United Kingdom Passport(s), shall be surrendered and provided to the wife and/or her legal representative as so directed.
43. Each parent is hereby authorised to obtain from the children's school all notices including but not limited to functions and school events, newsletters, correspondence and school reports concerning the children, the school or such other activities or events to which the parents are invited.
44. Each parent shall keep the other informed of their current residential address, email address and telephone numbers and will provide the other with written notice of any change within 24 hours of such change.
45. Each of the parents shall be entitled to obtain directly from any health service provider or welfare professional (excluding any confidential counselling) attended upon by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose, each party shall immediately notify the other of the names and contact details of such relevant professional.
46. Each of the parents shall keep the other informed of:
(a) Any medical emergency involving the children including but not limited to serious illness, accident or hospitalisation and/or which requires urgent medical treatment whilst in the care of that parent, as soon as practicable and in any event, not more than 12 hours of such event occurring;
(b) Any medical appointments including appointments with specialists that the children attend whilst they are in that parent’s care;
(c) Any medication that is required to be administered to the children whilst they are in that parent’s care.
47. Each parent is hereby restrained from making critical or derogatory remarks in relation to the other parent while in the presence or hearing of the children, and that each will respectively use his or her best endeavours to ensure that as far as possible no other person does so.
48. Any application for waiver of the costs of the Independent Children’s Lawyer (“the ICL”) be made to the Legal Aid Commission within 14 days of these orders and in the absence of waiver the wife pay the costs of the ICL in the sum of $10,254.32 within 60 days of the date of these orders.
49. Any application for waiver of the costs of the ICL be made to the Legal Aid Commission within 14 days of these orders and in the absence of waiver the husband pay the costs of the ICL in the sum of $10,254.32 within 60 days of the date of these orders.
THE COURT NOTES THAT:
A. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The wife should inform the husband of the decisions she makes (if any) about long term issues for the children but she should not be required to enter into a dialogue about these matters with the husband as to do so is likely to expose the children to conflict between their parents.The primary considerations It was not controversial in this case that there was a benefit to the children having a relationship with both of their parents. The husband agreed that he wanted his children to have a relationship with the wife. The difficulty was that, absent orders designed specifically to address the deterioration in the children’s relationship with the wife, the single expert, Dr O (“Dr O”), was of the view that the children were at significant risk of losing their relationship with their mother, potentially for decades to come. The husband’s application provided for limited time between the children and the wife (one day per fortnight during the school term). From the husband’s perspective, such time was consistent with the children’s expressed views and designed to minimise their exposure to more extended overnight time, which he contended the children would find challenging. Having heard the evidence I accept that the children have found and will find more extended overnight time with the wife challenging, particularly in the short term. However, there are a number of matters which require consideration alongside this finding. Ms M (“Ms M”), the parties’ family therapist, gave evidence that the children were relaxed in the wife’s household (at least at the time she was engaging with them). The wife gave evidence about enjoyable and relaxed times with the children – noting that she accepted this was the case at present in only a quarter to a third of her time. There was also evidence from the wife and her lay witnesses about the nature and quality of the children’s relationship with the wife prior to separation. I accept that evidence because it accords with the husband’s willingness to leave the children in the wife’s care for extended periods while he worked out of Sydney. I also find support for this conclusion in the children’s observations about the care arrangements pre-separation with the wife being responsible for taking them to their activities (and indeed participating in martial arts as well). In a similar vein, Ms R (“Ms R”), the wife’s treating psychologist gave evidence that the wife presented in sessions with her as a competent parent who was attentive to her children’s individual interests, had fostered their peer relationships, had obtained assistance for them when required and worked with her on strategies for dealing with behavioural issues. Ms R understood that the wife would find the experience of parenting full time challenging not on the basis she lacked the requisite skills but rather that she lacked confidence in her skills. Ultimately, Dr O expressed the view that, in order to give the children the best opportunity to have a meaningful relationship with both parents, it was necessary to take the step of restricting the children’s time with the husband to allow them to “rebalance the scales – give the children the opportunity to recalibrate their relationship with their mother without interference and without sabotage”.