Sanders & Sanders

Case [2022] FedCFamC1F 213

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…

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Sanders & Sanders [2022] FedCFamC1F 213
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CaseChat Overview and Summary

In the case of Sanders & Sanders, the Federal Circuit and Family Court of Australia (Division 1) was tasked with resolving both financial and parenting disputes between the husband and wife. The primary focus of the hearing was on parenting matters, particularly the children's relationship with their mother. The wife sought sole parental responsibility and primary care of the children, while the husband aimed to retain significant parental responsibilities. The Independent Children's Lawyer also advocated for sole parental responsibility to be granted to the wife.

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

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

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”.