Sanders & Sanders (No 5) - [2023] FedCFamC1F 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanders & Sanders (No 5) [2023] FedCFamC1F 59

File number: SYC 7660 of 2020

Judgment of: BRASCH J

Date of judgment: 15 February 2023

Catchwords:
FAMILY LAW – PARENTING – Where final parenting orders made in April 2022 – Where children’s residence changed from father to mother – Where father’s appeal dismissed - Where mother has the benefit of a Recovery Order – Where it was anticipated the children residing with the mother would be fraught – Where father applies for new parenting Orders – Where s 79A of the Family Law Act is not a vehicle to set aside parenting orders - Where the Department of Communities and Justice is supporting family - Where Rice & Asplund (1979) FLC 90-725 discussed – Where further litigation about the children is not in their best interests - Application for new parenting orders dismissed

FAMILY LAW - COSTS – Where mother seeks costs of an Application in a Proceeding to facilitate sale of the former matrimonial home pursuant to final property orders – Where father did not sign a required form – Costs Order made

FAMILY LAW - PROPERTY – Where final property orders made in April 2022 – Where father’s appeal dismissed - Where father filed an Initiating Application for fresh property orders – Where father did not like the final property orders – Where father twice previously told to consider s 79A of the Act – Where directions made for father to file an Amended Initiating Application – Where the father did not - Where the father’s new property orders dismissed by consent – Where father again seeks fresh property orders in his Case Outline – Where submissions on jurisdiction to make fresh s 79 property orders were ordered – Where father did not comply with those orders - Where power to make orders pursuant to section 79 has been exhausted - Where Gabel & Yardley (2008) FLC 93-386 followed - Where the court has no jurisdiction to entertain fresh s 79 property orders

Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CC(3)(a)-(m), 64B(1), 69ZT, 69ZW, 79, 79A, 79A(1)(d), 91B, 106A(1), 117, 117(1), 117(2), 117(2A),117(4), 117(4A), 117(5), 117(6)

Cases cited:
Fickling & Fickling (1996) FLC 92-664; [1996] FamCA 13

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Hedley & Hedley [2019] FamCA 946

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

King & Finneran (2001) FLC 93-079; [2001] FamCA 344

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

McEnerney & McEnerney (1980) FLC 90-866

Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150

Phillips & Hansford (2019) FLC 93-917; [2019] FamCAFC 165

Rice & Asplund (1979) FLC 90-725

Searson & Searson [2017] FamCAFC 119

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Trewitt & Brock [2021] FedCFamC1A 9

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

[2006] FamCA 204

Division: Division 1 First Instance

Number of paragraphs: 191

Date of last submissions: 6 February 2023

Date of hearing: 24 January 2023

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Minors Family Law

Solicitor for the Independent Children's Lawyer: Russell Kennedy Lawyers NSW
ORDERS

SYC 7660 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SANDERS

Applicant

AND:
MS SANDERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

15 FEBRUARY 2023

THE COURT ORDERS:
1.The balance of the father’s Initiating Application filed 5 October 2022 be dismissed.
2.The mother have her costs of the Application in a Proceeding filed 10 January 2023 in the sum of $888.24.
3.The payment due to the mother under Order 7(e)(i) of the Order of 7 April 2022 be increased by the sum of $888.24.
4.In the event the conveyance of the home has settled, making Order 3 futile, the father is to pay the mother the sum of $888.24 within 28 days of this Order.

THE COURT NOTES:
A.On 5 December 2022 and with the father’s consent, the Court dismissed the property orders sought by the father in his Initiating Application filed 5 October 2022, but inadvertently overlooked further property orders he sought later in that document.
B.On 24 January 2023 and with the father’s consent, the Court dismissed the balance of the property orders sought by the father.
C.The father agitated further s 79 property orders in his Case Outline filed 17 January 2023.
D.The Court required the parties to make submissions about what jurisdiction the court had to entertain the agitation of further s 79 property 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION

On 7 April 2022, Her Honour Justice Christie gave reasons and made orders in this matter concerning both parenting and property matters on a final basis (“the April 2022 Orders”). With respect to the parenting of the children, X (born in 2009) (“X”) and Y (born in 2010) (“Y”) (“the children”), Her Honour changed the children’s residence from Mr Sanders (“the father”) to Ms Sanders (“the mother”). With respect to the property, Her Honour determined it was just and equitable that the parties’ assets, liabilities and financial resources be adjusted 42 per cent in the father’s favour and thus 58 per cent to the mother.
On 13 April 2022, the mother filed an application for a Recovery Order. That order was made on 14 April 2022 (“the Recovery Order”). As was anticipated by Her Honour in her Reasons for the April 2022 Orders (see for example [193]-[195]), the children ran away from the mother to the father several times, and the mother thus relied on the Recovery Order to have them returned to her.
Her Honour had ordered a moratorium on time between the children and father, initially for three months, then four months. The mother says, and it was not in dispute that from 27 April 2022 to late August 2022 neither child ran from her care nor expressed any threats of self harm to her, or attempts at same.
On 4 May 2022, the father filed a Notice of Appeal in relation to both the parenting and property Orders.
On 16 May 2022, Christie J dismissed the father's application to stay her April 2022 Orders, pending appeal (“the Stay Orders”).
On 16 August 2022, the mother filed an Application in a Proceeding to vary the parenting orders, and on 19 August 2022, the mother filed an Application – Contravention. These applications were listed for hearing before Christie J on 22 February 2023. Ultimately, and consistent with her submissions before me that all litigation ought “come to an end” for the benefit of the children, the mother withdrew those two applications and I vacated the relevant hearing dates.
On 5 October 2022, the father filed a fresh Initiating Application seeking new orders for parenting and property and for the Independent Children’s Lawyer (“the ICL”) to be discharged. A Senior Judicial Registrar dismissed the application with respect to the ICL on 28 October 2022.
On 18 October 2022, the Senior Judicial Registrar made orders requesting the Department of Communities and Justice (“the Department”) intervene pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) and for the release of information provided pursuant to s 69ZW of the Act to the legal representatives and the ICL. The Senior Judicial Registrar also made orders by consent that the parties would comply with any directions of the Department and the children’s therapists.
In the afternoon of that 18 October 2022 hearing, one child ran from the mother when she went to collect him after school. The other child left the mother’s home some time that evening. They both ended up at the father’s residence.
The following day, being 19 October 2022, the mother met with the family’s Case Worker from the Department and essentially acquiesced to the children staying at the father’s “temporarily”, but with the intention of the children building up their time with the mother to that provided in the April 2022 Order. It was also submitted by the mother that continuing to resort to the Recovery Order and having the police remove the children from the father to the mother was damaging to the children. It is the mother’s case that the Department is working with her and the children to have the children returned in compliance with the final parenting order.
On 22 November 2022, the Appeal Division of this Court dismissed the father's appeal.
The father's Initiating Application (filed 5 October 2022) came before me for mention on 5 December 2022, where the father agreed, in summary, that because he did not like the final property orders, he could simply start again. After some discussion, he agreed that I dismiss the property orders he sought at paragraphs 13 to 20 of his Initiating Application. As it turned out, he had other property orders at the end of his list of orders (proposed orders 27 to 29), so when the matter came before me again on 24 January 2023, and after the same discussion about bringing property proceedings anew, I dismissed the balance of the property proceedings, again with the father's agreement at the start of the hearing.
That Initiating Application also sought parenting orders. The mother's Response, filed 1 November 2022, was that:
1. That the Initiating Application filed by the Applicant [Mr Sanders] on 5 October 2022 be hereby dismissed.
2. That the Applicant meet the Respondent’s costs of and incidental to these proceedings.
At the 5 December 2022 mention before me, the mother raised Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) with respect to the father’s parenting application. The ICL agreed that was an issue to consider. The father also indicated he understood that this ought be considered.
Thus, I set that issue down for hearing in January 2023. I took that path in reliance upon decisions such as Searson & Searson [2017] FamCAFC 119 where Murphy J said at [8], citing SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383:
It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.
I determined to list it at the outset. It was agreed by at least the ICL and the mother that I do so. More so, if I am with the father that there has been a material change of circumstances, then the matter can proceed in the usual way. If I am against him, then the children will not be put at the centre of further litigation about them.
At the Court's request, an officer from the Department appeared on the 5 December 2022 hearing. I made orders that the Department notify the Court by 23 December 2022 if they intended to intervene or not. I also made various directions including orders listing the Rice & Asplund issue for hearing on 24 January 2023 at 10.00 am, for no more than two hours.
The hearing on 24 January 2023 did not last 2 hours. It went all day.
On 22 December 2022, the Department advised they would not intervene in the proceedings. That letter was attached to the mother’s 13 January 2023 affidavit at pages 76 to 78.
Turning to the property dispute, but still within this chronology, on 10 January 2023 the mother filed an Application in a Proceeding to have documents signed to cause the sale of a property as required by the April 2022 Orders. That document was to be signed by 15 January 2023. Christie J made an order on 13 January 2023 that the mother was appointed to solely complete and execute the Westpac “Request to vary security form” for the purpose of the sale of the former matrimonial home pursuant to s 106A(1) of the Act. Her Honour listed the balance of the mother's property Application in a Proceeding before me at the same hearing of the Rice & Asplund hearing on 24 January 2023. Her Honour also made a direction for the father to file a Response and affidavit by 20 January 2023. He filed an affidavit, but not a Response.
On 17 January 2023, the mother and father filed their Case Outlines as required by my 5 December 2022 orders. In that order, I had given the ICL liberty to file an outline if they deemed necessary. The ICL filed an outline on 23 January 2023 and, like the parents, raised Rice & Asplund as a key consideration.
Notwithstanding my dismissal of the father's property orders as set out above, the father's Case Outline again sought property orders.
Before turning to the hearing on 24 January 2023, it is now timely to summarise the familial background and material upon which the parties' relied.
Background
The father was born in 1975, and the mother was born in 1977.
The parties commenced a relationship in 2003. In mid-2004, the parties commenced cohabitation.
In 2007, the parties married. X was born in 2009 and Y in 2010.
In July/August 2020, the parties separated on a final basis. It was not agreed between the parties what date separation occurred, but it was not necessary for me to decide that on this application.
The hearing on 24 January 2023
After all the permutations described above, the following disputes were before me on 24 January 2023:
·The Rice & Asplund preliminary issue;
·The mother's application for costs arising from her property Application in a Proceeding filed 10 January 2023; and
·The father's agitation of new s 79 property orders in his Case Outline.
I will consider, in turn, each of the three disputes listed above.
Parenting
Material
The mother filed one consolidated affidavit on 13 January 2023, as required by my 5 December 2022 orders. The father filed three affidavits – one on 13 January 2022 as required by my orders, then another affidavit of 103 pages on 20 January 2023 (purported to be in compliance with Christie J’s directions on the mother’s application to have documents signed) and a third of 116 pages on 23 January 2023. Plainly, the last of these was filed and served the day before the hearing. The mother objected to its receipt.
After much discussion, and after giving the father 30 minutes to consider what material he sought to rely upon, the material before me for the father on the parenting aspect of the dispute was his:
·Initiating Application filed 5 October 2022, in particular orders 1-12 and 21-26;
·Affidavit of Mr Sanders filed 13 January 2023; and
·Affidavit of Mr Sanders filed 23 January 2023, but limited to paragraphs 340-350, 405-412 and annexures 15 and 17.
The mother relied upon her:
·Response to an Initiating Application filed 1 November 2022;
·Affidavit of Ms Sanders filed 13 January 2023;
·Notice of Child Abuse, Family Violence or Risk;
·Orders and Reasons dated 7 April 2022;
·Orders and Reasons dated 16 May 2022; and
·Single Expert Report (Dr O) dated 14 April 2021.
The ICL relied upon:
·Orders and Reasons dated 7 April 2022.
Each party filed a Case Outline. During the course of the hearing, I received three exhibits into evidence. I also gave the parties a copy of the unreported decision of Justice Jordan in [2006] FamCA 204. I refer to this later in these reasons.
Legal Principles
The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the children’s best interests. However, the mother’s Response is the application be dismissed. She relies upon Rice & Asplund in that regard. In an often cited extract, Evatt CJ said:
The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.
(Emphasis added)
Not long after that Nygh J said this in McEnerney & McEnerney (1980) FLC 90-866 at 75,499:
....the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
One comes back to the fundamental principle that the interest of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
(Emphasis added)
Similarly, the ICL referred me to Langmeil & Grange (2013) FamCAFC 31 (“Langmeil & Grange”), where it was said that the rule in Rice & Asplund is founded on the notion that continuous litigation over children is generally not in their best interests. That consideration arises squarely in this matter.
In a recent decision of the Appeal Division in the matter of Trewitt & Brock [2021] FedCFamC1A 9 (“Trewitt”), there was a discussion about whether dismissal of an application such as the father’s, is a parenting order with the meaning of s 64B(1) of the Act. That section provides:
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
The father asks me to make parenting orders. However in Trewitt the Appeal Division reminded at [25]-[26]:
It is important to note that s 64B of the Act refers in terms to the making of an order and not to the nature of the application that led to the order itself. Attention must be given to the nature of the order itself and not the application that led to the order being made.
Here the father sought to vary the existing orders so that there was to be equal shared parental responsibility and the imposition of an equal time arrangement. If those orders were made they would unquestionably be parenting orders as defined by s 64B of the Act. They were not the orders made and the application was simply dismissed. Such an order of dismissal, however, does not discharge, vary, suspend or revive an order made under s 64B(2) of the Act. Therefore there is some difficulty in describing the order of dismissal as a parenting order.

Relevantly, this was also held in Trewitt at [29]-[31]:
The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
The nature of the proceeding was aptly described by Warnick J in SPS and PLS (2008) FLC 93-363 (“SPS ”) (which explanation was approved in Marsden & Winch (2009) 42 Fam LR 1 (“Marsden”) at [41]–[47]; Langmeil & Grange [2013] FamCAFC 31 at [46] and Poisat at [40]) as follows:
81. ... [W]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
The ICL referred me to the decision of King & Finneran (2001) FLC 93-079, where the application was dismissed for lacking a significant change in circumstance. It echoes what was said by Warnick J above, and particularly that the Rice & Asplund issue can be determined at a preliminary stage.
Submissions
As I had done on 5 December 2022, I again identified for the father that he needed to identify the material change of circumstances since the April 2022 Orders were made and whether it was in the best interests of the children to embark on litigation about them afresh.
I will set out the father’s submissions in dot points and italics so it is clear to him that I heard his arguments. I have attempted to group his submissions by themes. I have not attempted to include every single submission made within each theme, but have recounted sufficient to be representative of the thrust of the father’s submissions. Of course, I am not required to address every submission made or refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Under each theme, I will include the mother’s and ICL’s submissions where made, the essential gist for each party was that father makes the same allegations as he did before Christie J.
·The “one main thing” was that the mother’s affidavits contained hearsay and that has been given (in past proceedings) more weight than it should. In the current affidavit the mother also relied upon hearsay for example at paragraph 22.5.7 (where the mother quoted an unnamed police officer and paragraph 22.8.2 where the mother repeats what she says the child [X] said to the police.
Other than perhaps wishing to impugn past decisions, it was not clear to me how past reliance on hearsay now helps me with the Rice & Asplund issue and ultimately whether it is in the children’s best interests to litigate about them again. As for the hearsay in the mother’s current affidavit, the Act says some specific rules of evidence do not apply in parenting proceedings unless the Court decides to apply one or more of those specific provisions (s 69ZT). The parties advised me no such ruling had been made in this case. I indicated to the father that irrespective of what had occurred in the past, for me, it was matter of what weight I would attribute to hearsay statements in the mother’s material – but also his own.
The mother and ICL did not make submissions about this theme. The father’s submissions about hearsay do not help me with the task at hand as they do not assist me in understanding the material change asserted by him.
·Pursuant to s 79A of the Act, if a party is not honest and truthful that should have bearing on what else they say. Section 79A requires the least intervention. A consideration is that there are exceptional circumstances to change; s 79A(1)(d) says that.
·Her Honour’s assessment of homemaker contributions (in the property proceedings) allowed the father to bring new parenting proceedings.
Despite explaining to the father that “the orders” referred to in s 79A, are property orders, he maintained that s 79A allowed me to re-open the parenting proceedings. I do not accept that. Section 79A is plain that it applies to the discretion to set aside a property order made under s 79 of the Act. Equally, s 79A(1)(d) also relates to an order under s 79:
79A Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(Emphasis added)
The father said I had mentioned s 79A in the December hearing. That is correct but very clearly when we were discussing why he could not bring s 79 property proceedings afresh. Section 79A was also brought to his attention by a Senior Judicial Registrar on 31 October 2022. Indeed, he was ordered to file and serve an Amended Initiating Application by 19 November 2022, but did not.
I do not accept that s 79A of the Act can be used to set aside parenting orders. I also do not accept the submission that however Christie J assessed homemaker contributions in the property aspect of the parties’ dispute, that this provided a basis to now allow the father to start parenting proceedings anew.
·If I re-open the parenting I should re-open the property. Rice & Asplund can consider property, for example Fickling in 1996. Rice & Aplsund means that when there is a reversal of care I must re-visit the property orders. I am here trying to have parenting and financial arrangements to care for the children.
Night does not follow day. I know of no authority that requires I must start afresh with the property proceedings if I allow the father to re-litigate the parenting.
The father does not have an application to set aside the property orders pursuant to s 79A. I have already set out that that provision had previously been brought to his attention not once, but twice. He even had the benefit of a direction to file an Amended Initiating Application but did not do so. He agreed on both 5 December 2022 and 24 January 2023 that I dismiss the part of his Initiating Application that concerned property. Nevertheless, he agitated for property orders in his Case Outline. I say more about that later under the heading of “Property”.
Doing the best I can, it may be the father was referring to Fickling & Fickling (1996) FLC 92-664 (“Fickling”). He did not give me a citation. Fickling was an appeal that concerned the approach taken by the primary judge to an application to set aside/vary property orders pursuant to s 79A of the Act and, separately, the making of a child maintenance order. It does not assist the husband what so ever in the Rice & Asplund issue before me.
It is certainly appreciated that the father wants parenting and financial arrangements to care for the children. The problem with that though is that there are financial and parenting arrangements in place – that is, the final orders with which the father does not agree. But orders are solemn obligations imposed on parties whether they agree or not.
Orders are not optional – an observation also made by Christie J in the April 2022 Reasons at [197].
·Her Honour concluded the property was worth $1.3 million. The mother said $1.46 million. I agreed to $1.3 million under duress. The housing market has significantly changed. The sale of the property for [less than $1.3 million] places significant strain on me and financial stress. The Senior Judicial Registrar made enforcement orders; a significant change. The financial orders are punitive. The sale just recently is causing financial hardship. The impact is a significant change. The mother gets $632,290. On a sale of [less than $1.3 million] the mother gets 85 percent. My financial hardship is because of Her Honour’s punitive orders and that impacts on my care for the children.
·A significant change of circumstances is the adverse impact on my capacity to care for the children – financial capacity, not the capacity to care, but financial.
·The orders are unfair and unjust. Financial hardship to me, is then, to them (the children) also.
As I explained to the father, I am not conducting an appeal from Christie J’s Orders, nor am I conducting some form of review/appeal of her Reasons. What I do observe is if the children’s placement with him is causing financial stress then he could comply with the orders and cause them to live with the mother as has been ordered.
I do not know (nor need to know) what the father means by duress. As is clear from the April 2022 Reasons at [16] and [209], the parties prepared a joint balance sheet with the former matrimonial home having an agreed value of $1,300,000. Her Honour simply accepted the parties’ joint position with respect to the value they both said ought be attributed to the home. Further, what the father seems to complain about now is that the property orders did not provide for a rise and fall clause if the house was to be sold. But it is also clear from the April 2022 Reasons at [223] that the father did not ask for one or make submissions about that. In any event, none of this helped me understand a material change of circumstance with respect to parenting.
The father’s submissions about his own financial stress as a consequence of his non-compliance with the April 2022 Order does not assist me with the Rice & Asplund issue.
·Phillips & Hansford [2019] FamCAFC 165; Hedley & Hedley [2019] FamCA 946.
I am not sure what I am to make of these cases. Phillips & Hansford (No. 2) [2019] FamCAFC 165 is an appeal against interim parenting orders. In the unique circumstances of that case, the primary judge “found that a short term variation of the orders, pending a full consideration of whether the orders should more generally be reconsidered, was in the children’s best interests” at [34]. As is obvious, I have determined, in my discretion, that the Rice & Asplund issue be determined in this preliminary way.
As for Hedley, the father told me that case meant that allowing him to litigate again “might not take two years.” That was in the context when I had asked the father to help me understand how another two to three years of litigation would be in the children’s best interests.
I asked the father how long the first round of litigation took; his answer was, “two years”.
His reference to these cases do not assist me with the task at hand.
·The children lived with me post separation and visited the mother most weekends, and have lived with me since 19 October [2022] and call their mother at 8pm overnight. The children are physically with her on weekends, and I am trying to make it every week.
This submission, and agreed fact that the children are spending unsupervised time with their mother makes it difficult for the father to also maintain that the children are at an unacceptable risk of harm with the mother. The issue of an unacceptable risk was another submission made by the father as to a material change of circumstance. Yet, in his Case Outline he also proposed parenting orders whereby the children would spend unsupervised time with the mother.
Both the ICL and mother made submissions that the father cannot assert unacceptable risk on one hand, but urge weekly, unsupervised time between the children and mother on the other (for example, the father’s affidavit filed 13 January 2023, paragraph 10 where he deposed the children had been subjected to aggressive bullying from the mother for months, but paragraphs 20, 22, 89 and 101 depict the father continuing to send the children to the mother and encouraging that occur “every weekend”). I agree. That contradictory position is also how the father ran his case before Christie J. There is no material change in what the father says again. More importantly, on the father’s own case, I am not satisfied that the children are at an unacceptable risk as might otherwise warrant looking at parenting orders afresh.
That the children’s change of residence to the mother has been fraught and currently not being complied with was anticipated by the single expert Dr O, and ultimately, by Christie J; April 2022 Reasons at [180]-[181].
It is common ground that on 19 October 2022 the children began living with the father, contrary to the final orders. The mother had utilised the Recovery Order several times prior to this, in order to have the children recovered to her. However, on this occasion she deposed that in consultation with the Department case worker, she agreed that the children live “temporarily” with the father and continue the therapeutic approach to the children’s return to her (Mother’s affidavit filed 13 January 2023, paragraph 32).
That shows some insight and child focus on the part of the mother. However, the mother says the Department is working with her and the children to have the children returned to her and the Final Orders then be complied with.
The Department’s decision not to intervene was contained within a letter attached to the mother’s affidavit at page 76 to 78. It said, inter alia at page 77:
1.…The outcome of the Safety Assessment for [X] and [Y] in [Ms Sanders] household was Safe…
2. Consistent with paragraph 108 of the 14 .04 .2021 single expert report by [Dr O], which stated that neither [X] nor [Y] were at risk of physical harm from either parent, DCJ supports and has observed that there have been no observable injuries to either [X] or [Y] and DCJ was not able to substantiate the reported concerns. It should, however be noted that DCJ did not complete a RISK assessment for [Ms Sanders'] household as this assessment is only applicable to where the children reside.
3.…The outcome of the Safety Assessment for [X] and [Y] in [Mr Sanders'] household was Safe.…The Risk Assessment for [Mr Sanders] household was high. Based on DCJ’s intervention pathways following the Risk assessment outcome of High, it informs DCJ that the family needs further support. For the ongoing risk to [X] and [Y] to be minimised, DCJ intends to be involved for a further period of time by way of voluntary family action plans.
4.DCJ will work collaboratively with [Mr Sanders] to develop a Family Action Plan for Change…
The father submitted the department did not do a RISK assessment of the mother, but the department explained why in the extract above. In any event, the father is sending the children on time with their mother, and aiming for weekly time, which completely contraindicates his other submissions about her apparent risk to the children.
·the orders I seek in a practical sense most likely will avoid further litigation. If my orders are not made the children will keep running away.
Difficulties attend to these submissions. The father has filed an Initiating Application to change the orders that are not even a year old. The mother disagrees with that. If I allow the matter to proceed there will be further litigation.
The next problem is that the children are currently living with the father; there is no running away. The mother has shown child focus in not utilising the Recovery Order since their most recent absconding from her to the father. Instead she is working with the Department on a therapeutic approach to have the children live with her as provided for by the April 2022 Order.
Accordingly, the submissions do not assist with my current deliberative task.
·My position is the parenting orders must change. My objective is to change the parenting orders.
The father’s objective and position are crystal clear, but do not help me understand the material change of circumstance and ultimately why it would be in the children’s best interests to have their parents fighting over them again. Further, looking at Christie J’s Reasons at [34]-[45] what the father now seeks, is very similar to what he proposed before Her Honour.
The father also submitted that he “needs to stop the orders even though I know how damaging the court process is to the children”. The damage to the children of allowing the father to re-litigate is something I must take into account; it is a weighty consideration.
·There is consent to change the orders. The mother in truth agrees. She’s just motivated by money. Any position adopted by the mother is fraudulent. The mother is not being honest or truthful. The mother said she would back off and the children can live with the father which is also supported by text messages. In the text message there was no mention of [Y]. He was not even thought of.
·The mother has engaged in clear deception. The mother is not honest. Her intent is to mislead the court. The mother is a liar.
Whatever the mother may have said or texted to Mr UU or Ms R (both counsellors), the mother’s solicitor confirmed the mother did not consent to the father’s proposed parenting orders. There is no consent from the mother before me. I say more about the text to Ms R later.
The submissions about the mother’s credibility or lack thereof on the father’s case are not new and do not help me with the task at hand – that is, whether there is a material change of circumstances. A part of the father’s case before Christie J was that the mother was a liar and lacked credit; see April 2022 Reason at [186]. There is no material change here; the father’s case before me about the mother was on all fours with his case before Christie J.
·Whatever the mother’s intention, the children’s view of the mother is that she is only interested in the money and does not care about them. The children heard the mother make statements and that motivated them to get evidence. That is not healthy and should not continue.

The father’s view of the children’s view of their mother is not new. The children’s apparent views were the subject of detailed consideration in the April 2022 Reasons. The views of the father and views of the children have not changed.
However, it troubles me greatly that the children have been motivated to “get evidence”. I agree with the father that that is not healthy and should not continue. It begs the question then as to why the father would wish to embark on the litigation process again, where the children may remain motivated to collect evidence – an unhealthy thing which, on the father’s case, should not continue. I agree.
·A significant change is the children’s’ behaviour. Their behaviours and circumstances – four suicides [attempts] since the orders. [X] never self harmed when in my care or when married. I say the mother’s threats and conduct are a causal factor.
The self-harm threats, suicide threats and attempts are, of course, very serious and very concerning. It was the father’s case that “the children (notably [X]) have since attempted their own suicide on at least four occasions” (Father’s affidavit filed 13 January 2023, paragraph 49). It was not clear on the father’s material when they occurred or precisely what happened, but doing the best I can, it seems to be the following:
·Mid-2022 – I do not know what the father said occurred this day when looking at his affidavit (for example, Father’s affidavit filed 13 January 2023, paragraph 67).
·A letter attached to the mother’s affidavit from his then lawyers said “our client and [Y] went upstairs to locate [X]. On entering our client’s bedroom, [X] was observed lying on our client’s bed, with a belt wrapped around his neck, attempting to strangle himself” (Annexure W4 to the Mother’s affidavit filed 13 January 2023, p.30).
·The mother deposed that the police told her that “[Mr Sanders] had reported [X] put a belt around his neck and tried to strangle himself. Further, [Y] told [Mr Sanders] that he wanted to kill himself and me [the mother] as well” (Annexure W4 to the Mother’s affidavit filed 13 January 2023, paragraph 22.5.7). The mother allowed the children to stay that night with their father.
·It is useful to observe that the ICL spoke to the children on that day. Whilst the children were angry at the ICL and considered their views had not been heard, the ICL said “the children did not report any threats of self-harm” (Annexure W2 to the Mother’s affidavit filed 13 January 2023, p.25). Consistently, in emails to the ICL of May, June and August, X made no threats of self-harm to himself (Exhibit H-1 to the Father’s affidavit filed 13 January 2023, p.16).
·Mid-2022 – I do not know what occurred on this day from the father’s affidavit (Father’s affidavit filed 13 January 2023, paragraphs 68 and 70).
·The mother deposed that a friend of hers told her “[X] had contacted [the father]’s mother in the United Kingdom and stated he would kill himself if he had to go to my [the mother’s] house” (Mother’s affidavit filed 13 January 2023, paragraph 22.8). The paternal grandmother apparently contacted the father who went to the police. The children stayed at the friend’s house and then were delivered back to the mother the next morning (Mother’s affidavit filed 13 January 2023, paragraph 22.9)
Mid-2022
·The father deposed “[X] attempted suicide by wrapping his jumper around his neck whilst alone with NSW Police Constable [VV] in [U Hospital], and at this time [Y] was self-harming and expressing a wish to commit suicide” (Father’s affidavit filed 13 January 2023, paragraphs 70-71).
·The mother deposed “while I was waiting for the children. [X] took off his jumper and wrapped it around his neck. The police saw this and immediately removed the jumper from him” (Mother’s affidavit filed 13 January 2023, paragraph 22.9.8).
·The hospital note said, “He has had suicidal ideation on three occasions. Two weeks ago prior to being admitted to hospital, yesterday, and today. Today he tied a jumper around his neck to try to strangle himself but stopped after 5 minutes because he felt ashamed” (Father’s affidavit filed 13 January 2023, paragraph 77). The police left the children in the mother’s care (Father’s affidavit filed 13 January 2023, paragraph 80). The father takes issue with the word “ideation” in this record, preferring attempts.
·The next day, the mother said the hospital professionals told the children “to stop using the Hospital as a respite service” (Mother’s affidavit filed 13 January 2023, paragraph 22.10.1)
·Exhibit 1 from WW Therapy recorded an unknown “reporter” saying the children had suicidal ideation; this note is dated mid-2022.
Late 2022
·The father does not seem to depose to this.
·The mother deposed that when the police attended the father’s home to collect the children, they saw X with a belt around his neck. X went to U Hospital where he was released to the police and then to his mother (Mother’s affidavit filed 13 January 2023, paragraph 29).
The father said the children have also spoken of suicide. That seems common ground.
The father brought the first of these three matters to Christie J’s attention on 14 April 2022, being the Recovery Order hearing and each of the first three to her attention on 16 May 2022, being the hearing of the father’s application to stay the order. The Recovery Order was made (to recover the children to the mother) and the father’s stay application dismissed.
Having listened to and engaged with the father for most of 24 January 2023, I have absolutely no doubt that he would have been clear and resolute in bringing these matters to Her Honour’s attention at those hearings. I equally have no doubt that the father would have set out his concerns and allegations to the Department. I have already referred to the Department’s view of risk in each household.
The mother submitted that the current therapeutic approach was a far preferable approach to starting litigation all over again – and on the same kinds of allegations and matters raised by the father now and then. It was also said that the best place for consideration of X’s self-harm and the children’s general conduct and beliefs was within that therapeutic environment. There is much force in that.
The mother submitted that from 27 April 2022 and to the end of July 2022 (when the children were not spending time with the father) the children’s behaviour was positive. Further, in or about the middle of 2022, there were no welfare concerns for the boys with the mother – X said he missed his father and was not happy staying with his mother. He was not upset or scared, “just missing Dad” (Exhibit 2, p.4). However, issues arose when the children started seeing their father again.
It was then submitted that from 29 July 2022 when the father contacted the children, their progress regressed. I was also taken to paragraphs 55 and 56 of the Stay Application orders where Christie J observed it would take time for the children to settle with their mother and whilst their running away was concerning, it was also anticipated.
It was also submitted that in late 2022, the police attended on the father’s home. X was there. Exhibit 3 records X as sobbing and hiding behind the sofa. He said he wanted to stay with his father, and that he did not feel like his mother’s home was home nor did he feel loved. The police took him to Suburb ZZ Station where the mother collected him. It was submitted that there was no talk of suicide in this record. The document speaks for itself. That is so.
The ICL properly submitted that the threats need to be considered, but asked whether they are a material change to warrant re-starting the litigation again, or, whether they were a part of the children’s established resistance to the mother. In preferring that second position, the ICL submitted that if the Department was concerned, they would intervene, or bring their own proceedings in a children’s court. He added there was much to be said in support of the Department’s view that the suicide threats / self-harm threats were the children using the hospital as a respite.
In Christie J’s April 2022 Reasons, Her Honour was well alert to the prospect that the children would find extended time with their mother challenging (for example, Reasons at [46] and [195]); and that has eventuated. I struggle though to conclude that an expectation coming to fruition is a material change. More so, from the children’s perspective, they and the parents are being therapeutically supported through the Department and X has the support of his School Counsellor. More specifically, the supports have included or continue to include:
17. The Department also established regular meetings with [WW Therapy] Support Therapist, [Mr AB], who attended our house and assisted the children and I with behavioural-type matters. I note that since the children recently began running away again, the appointments with [Mr AB] have concluded. This is because the children would often not be present at the time of his appointment.
18. [X] began attending upon [Mr UU] of Clinical Psychologist at [AC Psychology], while [Y] attended upon [Ms AD], Psychologist at [AE Psychology]. As far as I am aware neither [X] nor [Y] have been attending upon either [Mr UU] or [Ms AD] since they began living with [Mr Sanders] on 18 October 2022.
19. I am aware that [X] continues to attend upon the School Counsellor at [B School] for therapeutic support when required.
20. The Department have otherwise conducted welfare checks since the making of the Final Orders and have advised me that there are no issues of concern. Further, that I pose no risk of harm to the children.
(Mother’s affidavit filed 13 January 2023, paragraphs 17-20)
It is not necessary for me to find if the children’s words and deeds were suicide threats, suicidal ideation, cries for help, employing an immature method to achieve a desired outcome or other explanation. It is not necessary to do so because on any outcome, the children need therapeutic support, which is being provided to them.
There is nothing before me that satisfies me that the concerning actions and threats made by the children warrant them being exposed to more polarising, partisan and conflictual litigation about them. As identified later, Court makes X worried and scared. He has also been motivated to “get evidence.” To the contrary, the children (and parents) are receiving the supports they practically and emotionally need through the auspices of the Department.
·The mother must take responsibility for her actions.
There is nothing new or material in this submission. At [113] of Christie J’s reasons, she found this:
The difficulty with the approach taken by the father is that he sought to attribute to the mother all of the consequences of this increasing conflict and hostility as between them. The father was unwilling or unable to understand any role that he may have played in the conflict between the parties and its escalation.
In the hearing before me, the father was again very focused on the mother’s actions.
·The children need to be protected from the mother’s suicidal ideation.
The father deposed that in late 2022 the children overheard the mother telling someone her suicide would “make the children happy” (Father’s affidavit filed 13 January 2023, paragraphs 41, 125 and 128). He also laboured an email which X accessed on the mother’s phone (without her consent), which was an otherwise private conversation between her and her psychologist. X’s actions are part of his motivation to collect evidence to which I have referred.
Similar serious concerns about the mother’s utterances about suicide were considered by Christie J. Indeed, as set out in the Reasons for the April 2022 Order at [55], the father had a heading in his trial affidavit “[Ms Sanders’] bad behaviour and self-harm”, and commenced then with an incident said to have occurred in December 2011. Her Honour observed in various paragraphs:
53 …The mother has a twenty year history of anxiety and depression with episodes of self-harm and suicidal ideation. …
54.The case as articulated by the father was that the mother’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.
82.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 on an outing to [a store], [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.
93. … On admission to the [T Clinic in mid-2020] the mother’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 [in mid-2020] the mother 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
98. The evidence suggests that in [mid-2020] the tension in the parties’ household was high and the children were exposed to conflict between their parents. The mother 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 […] 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 father properly conceded that the precise expression was not material since either may be regarded as an expression of suicidal ideation.
99. [Ms R] was asked questions about the mother’s threats of self-harm during cross-examination by counsel for the ICL. [Ms R] indicated that the mother has expressed thoughts about wanting to die or be dead but not about a method or plan. [Ms R] indicated that the mother’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 mother’s feelings of worthlessness was said to be her experience of being belittled by her father. [Ms R] identified that the mother did not experience the same feelings in the workplace or amongst her social networks. It follows and is consistent with the opinion of the mother’s treating psychologist that the mother is less likely to experience suicidal ideation now that the relationship with the father has concluded.
At [148] Her Honour extracts notes said to be from one of the children as follows:
3. On Christmas eve 2020 Daddy made us see mummy at the skate park, and Mummy was talking about threats of suicide and I was scared so I didn’t [want?] to see her. When I first ran away she was talking about threats of suicide, and it was worrying and scary.
5. Mummy said she would kill herself and go into a kind of frenzy many times before the divorce, not just once.
That was evidence all before Her Honour.
The father deposed in his affidavit to “the children overhearing their mother saying she thought the children were against her, that she thought they wanted her to kill herself, and that once she got “his money” then the children would live with their father” (Father’s affidavit filed 13 January 2023, paragraph 8). The mother did not depose to any such conversation between herself and a third party. It is unclear when this occurred. However, it is consistent with what was before Her Honour.
Of the text to her therapist, the mother deposed:
I became aware that [X] went through my mobile phone on or about 13 September 2022 and took a screenshot of a message that was sent in confidence to my psychologist, [Ms R]….
(Mother’s affidavit filed 13 January 2023, paragraph 27)
The text message to the therapist was in the following terms:
They can't add any of this to the application as [Mr Sanders] isn't contravening. [Ms AG] has said she can't put anymore applications through for me until I sell the house. I am so over this. If this continues after I get the money and have paid off my debts. [X] can live with him. He will just keep doing this every day as [Mr Sanders] lives across the road and there is nothing I can do about it. I think [Mr Sanders] is hoping to push me to the stage where I do feel suicidal. Then he will be right. And I won't be around. They would all be happy.
(Mother’s affidavit filed 13 January 2023, paragraph 27)
The mother submitted this was a private conversation with her therapist where she expressed her frustrations (Mother’s affidavit filed 13 January 2023, paragraph 28). She also deposed that she continues seeing Ms R (Mother’s affidavit filed 13 January 2023, paragraph 50) which is obviously an appropriate thing to do given her long history of mental health challenges.
The ICL submitted that the mother’s text to her therapist would be given “no weight”. He added it was telling the father gave “so much air time” to the text because there was nothing else with respect to a significant change of circumstance. I will not give it no weight. Rather, it was consistent with things the mother said on the evidence before Christie J.
I accept the mother’s explanation that when she texted her psychologist she was frustrated. I do so because looking at the chronology of this matter, it stands to reason she would be. Obviously it would be better had she not expressed herself in this way (not that she could expect either child would go evidence collecting on her phone), but it simply continues a theme that the father developed before Christie J. I do not consider the mother’s awkward expression out of frustration to be a material change.
Separately, if the mother was the threat the father makes out, it beggars belief that he would send the children for unsupervised time with her and aiming for that to be weekly.
I am not satisfied that the mother’s long standing mental health difficulties and what she may or may not have said in the hearing of the children or in a supposedly private communication with her therapist is a material change of circumstance. The mother’s mental health has been a longstanding issue, as have the father’s allegations that the mother says inappropriate things to the children. There is nothing new or of material change in this. I have no evidence before me that the mother’s mental health has deteriorated or deteriorated such that she is now an unacceptable risk of harm to the children. Rather, the Department very recently concluded the children were safe in her household and did not substantiate the reported concerns of “excessive discipline” (Annexure W13 Mother’s affidavit filed 13 January 2023, p.76 paragraph 1 and p.77 paragraph 2).
·It was a “miscarriage of justice by Christie J” that Her Honour gave weight to the evidence of the mother’s psychologist [Ms R]. It should have been given little weight. The psychologist was unprofessional; she has never met me or the children. She cannot comment about me or the children.

This is not an appeal. These submissions do not assist me with the task at hand.
·[X] told a supervisor that he is (amongst other things) scared of what the court might do if he talks badly about his mother
There is also evidence before me that X worries about the court case (Father’s affidavit filed 13 January 2023, paragraph 35).
It is hardly a compelling argument on the part of the father to allow him to proceed with new parenting litigation when he also tells me that the consequences of that would see X worried and scared.
Hence, I asked the father why I would expose X (and Y) to being scared about the court’s actions over more years of litigation. The father rightly agreed that litigating again would be damaging for the children, but he said this was the lesser of two evils - the primary evil being the final parenting order and Recovery Order whereby the children could be taken to the mother by the police. However, to her credit, the mother has not relied upon the Recovery Order since 19 October 2022 when the children went to live with the father. She has also discontinued her Application-Contravention and Application in a Proceeding to vary the parenting orders.
I agree with the father that further litigation will be damaging to the children; I agree with the father that X may well be scared of and worried by what the Court may do. However, I do not consider the fact of the existence of a Recovery Order (which the Mother is currently not exercising) is an evil greater than the damage to the children of embarking upon litigation about the children all over again, especially when the father tells me court is something that scares X.
There is much force in a matter referred to by the father with respect to a police observation that:
The on-going family custody battle between NOK1 (mother) and NOK2 (father) is causing immeasurable distress to the psychological [well] being of [the children].
(emphasis added)
(Father’s affidavit filed 13 January 2023, paragraph 130)
It is evident that allowing the “custody battle” to continue will cause the kind of distress to the children about which the police were concerned.
·The mother has held views throughout the divorce proceedings that I brainwashed the children and they needed to be “de programmed”
The views said to be held by the mother during the “divorce proceedings” is unhelpful to the task before me.
·Other submissions
The father made a raft of other submissions which are of no assistance. For example, that it is said by others that he is driving the litigation but he has tried to mediate and arbitrate. Or, he has appealed and tried to get the ICL discharged. Or, even though he had “many issues with Her Honour” he did not think Christie J made her decisions “with malice”. Or, the Recovery Order “should not have happened”.
·Father’s submission in reply
The father made two submissions. First, the Department only conducted a Safety Assessment on the mother’s household but not a RISK assessment of the household (Mother’s affidavit filed 13 January 2023, p.77 paragraph 2). That is because a RISK “assessment is only applicable to where the children reside” (Mother’s affidavit filed 13 January 2023, p.77 paragraph 2). Second, when he tried to return the children he called the police as “I did not want to get injured.” Neither assist me with this preliminary matter of material change of circumstances.
Further discussion
Section 60CC(2)(a) of the Act:
The children are, on the applicant father’s case, having a relationship with both parents. Although the father said the children were at a risk of harm with their mother, he is also sending them to her for unsupervised time and aiming for that to be weekly. The orders he sought would also see the children having regular unsupervised time with the mother. So on one hand, on the father’s own case, the children are having a relationship with their parents, and it must be, that by sending the children to the mother, that it is a relationship that is meaningful. I accept that even though the orders of April 2022 are not currently being complied with, there continues to be a form of meaningful relationship between the children and their parents.
Section 60CC(2)(b):
It was the father’s case at trial that:
The father says that the mother’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.
(April 2022 Reasons at [20])
That remained his case before me. Indeed, the father added towards the end of his oral submissions before me that it is “still the case the children are witnessing violence”.
However, given the father’s actions in sending the children to see their mother and looking to do so on a weekly basis, and the orders proposed for regular, unsupervised time between the children and mother, I cannot then conclude that the children are at an unacceptable risk of harm when with the mother. I am fortified in reaching that conclusion by the Department’s conclusion to which I have already referred.
Section 60CC(3)(a)
There is nothing new in the children continuing to express the view that they want to live with their father. That was as fairly and squarely in issue by the father before Christie J, just as it is before me.
Unfortunately, there is also nothing new in the children acting on their view by absconding. For example, at in the April 2022 Reasons at [146]:
On 3 January 2022, [X] emailed the ICL reporting he felt unsafe and stressed, repeating old allegations involving the mother’s friend [Mr BB] having disciplined him and suggesting that the mother had bullied [Y]. He reported that he had run away and did not want to be taken back to his mother’s home.
At [133] and [190] Her Honour also referred to “running away” and “the previous history of contact refusal and absconding”. Looking prospectively, Her Honour said this at [192] – [193] and [195]:
… [Dr O’s] view is that spending uninterrupted time with the mother 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 mother 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 father’s fears).
It would not be possible to reach the above conclusion if the objective evidence supported the conclusion that extended time in the mother’s household placed the children at risk. The only identifiable risk to the children in the care of the mother 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 mother 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 mother’s unsupervised care since separation.
…
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.
Nothing has changed. As concerning as the absconding and self-harming behaviour is, it is difficult to see how litigating about them all over again would be in any way in their best interests. The children’s continuing resistance to their mother, is something best dealt with in a therapeutic setting as is happening now.
Section 60CC(3)(b):
I have already referred to the nature of the children’s relationship with each of the parents. True it is different from what Christie J ordered, but I do not consider that the father’s non-compliance with the April 2022 orders warrants re-opening the matter. No submissions were made about the nature of the children’s relationships with other persons (including any grandparent or other relative of the child).
Section 60CC(3)(c):
As Christie J found at [41], I too cannot see how these parties would participate in making decisions about major long-term issues in relation to the children. The level of conflict and distrust that was evident before Her Honour remains the case now. Nothing has changed.
Taking opportunities to spend time with the children and to communicate with the children is an issue that the father is now controlling. He would no doubt say it is the children who are directing this, but he is the adult in the matter. Again, I do not see that father’s non-compliance with the Order warrants re-starting the parenting litigation. Further, there is also nothing new in the father absolving himself from responsibility; see Her Honour’s Reasons at [113].
Section 60CC(3)(ca):
The father says that the “punitive” property orders are placing him under financial stress and thus impacting upon the children. He does not go so far as to say this means he is failing to fulfil his obligations to maintain the child. I have already made clear that s 79A of the Act does not apply to the parenting Orders. Nothing in this consideration warrants re-opening the parenting.
Section 60CC(3)(d) and (e):
No clear submissions were made about these considerations. Further s 60CC(3)(d) is future looking. Right now I am considering whether there has been a material change of circumstance since the April 2022 Orders were made.
Section 60CC(3)(f):
This concerns the capacity of each of the children's parents to provide for the needs of the child, including emotional and intellectual needs. Those capacities remain the same. As he did at trial, the father again alleges the children need to be protected from things the mother says or does. There is no material change in what he says now.
I also observe that as recently as the Department’s letter of 22 December 2022, they assessed the mother’s household as safe and the expressed concern were not substantiated. Further, as also said, the father is sending the children to spend unsupervised time with their mother which he hopes to do weekly, and also seeks orders for unsupervised time between the children and mother. Those positions of the father were at trial, and are again now, contraindicative of the risks he also asserted she presented at trial, and again now.
Further there is no change in the father’s attitude that the mother is all at fault. His affidavit material before me simply speaks to and underlines Christie J’s finding at [113] to which I have already referred.
There is no material change in the father’s belief system with respect to the mother. His “elevated rigidity” (April 2022 Reasons at [167]) remains plainly in his evidence before me.
Sections 60CC(3)(g) and (h):
These subsections do not arise. No submissions were made that they do.
Section 60CC(3)(i):
The parent’s attitudes to the children and to the responsibilities of parenthood, have not changed. Christie J found that the mother had “shown herself willing and able to obtain advice to assist the children where necessary” (April 2022 Reasons at [41]) whilst Her Honour found the “most significant deficit in the husband’s parenting capacity is his inability to take on objective evidence where it runs counter to his own opinions” (April 2022 Reasons at [155]). Nothing has changed in the parent’s attitudes and responsibilities since then.
Section 60CC(3)(j) and (k):
I have already considered the emotional harms which the father (again) alleged against the mother prior to the final hearing, and continues to do so now. The father also made some submissions about the mother and her solicitor writing to him and then his response being used as “entrapment” for an Apprehended Domestic Violence Order. That submission highlights the distrust between the parties, which is nothing new.
However, the level of animosity between the parties makes it plainly easy to predict that any future litigation will place the children front and centre of further ugly litigation. As the father submitted, future litigation will be damaging to the children. I agree.
Section 60CC(3)(l):
I have already referred to the father’s submission that his orders would least likely lead to further litigation; but further litigation is precisely what he asks me to embark upon. I have already referred to the damaging process of the children being motivated to collect evidence. I agree with the father – that has to stop. Thus if there is no further litigation on foot, then there ought be no need for the children to collect evidence at least for this court.
Whilst the father does not comply with the final order of Christie J, it is an order that is, in reality, somewhat empty. But that is not a reason of itself to open up the litigation over the children again. Indeed, the father’s non-compliance with orders is also not new or a material change in circumstance; see April 2022 Reasons at [131]-[132] and [180]-[182].
Section 60CC(3)(m):
Each of the parties and ICL embraced what was said by Jordan J in [2006] FamCA 204, supra. Indeed, the father submitted “our situation is very similar to this one.” The operative parts of [2006] FamCA 204 are as follows at [4]-[8]:
Nothing is changing. Each time the matter comes back before the Court, the issues are the same, the dynamics are the same, and I have reached the view that the Court no longer has a role to play in the regulation of this family. To the contrary, it is in the best interests of this family that the Court step aside until and unless there is a very significant development one way or another.
It is really now a matter for the parties and their children with the assistance of other agencies who, unlike the Family Court, have the benefit of being in the field, as it were, better able to monitor, better able to regulate and assist. The Family Court is something of a luxury. The resources, as I say, are limited and I am of the firm view that the time has now come for this Court to direct its resources to other important cases which may not have been yet before the Court on one occasion, much less 13.
I can see no merit in the recent applications of the mother. I admit into evidence and mark Exhibit 1 the mother's letter today, wherein she seeks replacement of the supervisor and a Legal Aid conference.
It is always open to the parties to try to resolve matters. If they are unable to resolve them between themselves, then to seek some form of mediation, and that is again available through a wide number of agencies, not just the Family Court.
I am not satisfied it is in the interests of these boys to be further indirectly involved in this litigation and re-interviewed. Everyone in this case has enough on their plate without being regularly before this place.
What His Honour said about that family in 2006, is just as apt to this family. I cannot accept that putting the children in the centre of litigation for another, say two years, would do them any benefit. Rather, they have considerable community supports through the Department and school. That is a far preferable approach for these children than re-embarking on a litigious process, which, given the flavour of the material before me, will continue to be a tug-of-war over and about the children.
Of course, it is of great concern that the children continued to abscond after the making of the orders, as they did beforehand (see April 2022 Reasons at [146], [148(3)], [190] and [193]). It is also of great concern that they have taken to self harm and/or threats of same, but it is hard to see that putting the children in the middle of further litigation about them would be therapeutic in any way. Instead, it is common ground that the children and parents are receiving considerable supports from the Department and one child is also being supported at school.
Those supports are entirely appropriate and have the real potential of being of greater benefit to the children than having their parents litigate over them again in this court.
The ICL submitted the decision in [2006] FamCA 204 is “on point”. He submitted, “is it in the children’s best interests to embark on litigation again? The answer is no. Whilst the current situation (with the father in contravention of the April 2022 Order) is unsatisfactory and non-beneficial, it is “difficult to see” how further litigation would help.”
He also submitted:
·The supports being offered by the Department and the school are “much more beneficial” than further litigation.
·Further litigation would create further uncertainty for the children and referenced that the X’s worries and concerns about court.
·The choice is a therapeutic approach or a litigious approach. The former is in the children’s best interest; the latter is not.
I accept the ICL’s submissions. In the circumstances of these children, his submissions were common sense and understood what more litigation looked like for these children.
Disposition
For the many reasons given, I cannot conclude that there has been a material change of circumstance that would warrant allowing the father’s application to proceed. Further, I cannot conclude that it would be in the children’s best interests that their parents re-new the litigation over them. Rather, I consider that resuming the litigation would be the antithesis of the child’s best interests in having them again the subject of litigation where their parent’s positons are polarised and redolent of a complete absence of trust, and allegations and counter-allegations of lies, deceit, manipulation, entrapment, and with X (according to the father) motivated to collect evidence.
Frankly, the children’s best interests will be better served by the therapeutic supports that are being provided to them in the community, as opposed to the non-therapeutic process that will be the parent’s further litigation.
The father’s application for parenting orders will be dismissed.
Costs of the mother’s Application in a Proceeding (re property)
The mother sought an order that any document required for the sale and settlement of the former matrimonial home be signed by her. The mortgage was held in the husband’s sole name and the husband was refusing to sign the “Westpac Request to Vary Security Form” required by the conveyancer to facilitate the discharge of the mortgage. In the event the form was not signed by 15 January the settlement of the former matrimonial home would be delayed. On 13 January 2023, Christie J ordered the mother be able to sign that specific Westpac Request to Vary Security Form and then adjourned the balance of application to the hearing before me on 24 January 2023.
By the time the matter was before me, the mother had ascertained no other documents needed to be signed. Hence, all the mother pressed was her application for costs in the sum of $888.24.
The mother’s material was her Application in a Proceeding filed 10 January 2023 and her affidavit of 13 January 2023. This affidavit is different from the parenting affidavit filed on the same date.
As to the father’s material, Christie J ordered the father to file an affidavit and Response by 20 January 2023. He did not file a Response but filed a voluminous affidavit, including topics such as “[Ms Sanders] knowingly filed a false Contravention Application”, “[Ms Sanders] ‘knowingly’ made a false allegation”, “Significant Change in Financial Circumstances” and “Current Orders are Causing Harm to Children”. I again gave the father the opportunity to identify what material he relied upon for this part of the hearing. His answers were non-responsive and largely concerned the property orders being “massive miscarriages of justice”, being “punitive” and the mother’s solicitors were “acting dishonestly”. When asked if he would be relying on the 20 January 2023 affidavit (the one ordered by Christie J in relation to the mother’s property Application), the father replied “no your Honour”.

Section 117 of the Act provides as follows. Subsections 117(4), (4A), (5) and (6) are irrelevant for present purposes:
117 Costs
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The mother’s case essentially was that she was put to the expense of bringing the Application in a Proceeding due to the father’s default in complying with the property orders. She explained that whilst she had been appointed by the Senior Judicial Registrar as trustee for the sale, there was one mortgage documents which the father had to sign as the mortgage was in his sole name. The document and request to sign was sent by the mother to the father prior to Christmas. It needed to be signed by 15 January 2023, but the father did not.
Due to the father’s conduct (or lack thereof) the mother had no other option but to apply to the Court for the relief that was granted.
In reply it was said that whilst the father had provided no financial disclosure, his Costs Notice for the Appeal indicated he earned $795 nett per day.
I read or otherwise summarised ss 117(1), (2) and (2A) to the father, to assist him in directing his submissions to the matters I must consider. I also went through each of the factors under s 117(2A) and asked for his submissions on each.
In short, his submissions were that he did comply with the orders and was not in contravention as the Senior Judicial Registrar’s orders gave the mother the power to sign all documents. Certainly that may have been the intent of the order, but his signature was required on the Request to Vary Security Form as the mortgage was in his sole name.
The mother sent it to him and requested he sign it.
He said he did not.
I now turn to the s 117(2A) consideration in turn.
Financial circumstances
The father did not dispute that he earns $795 nett per day, but I do not know how often the father works. The mother said in her affidavit that she presently earns approximately $2,000 nett per fortnight and receives approximately $500 per fortnight from Centrelink in addition (Mother’s affidavit filed 13 January 2023, paragraphs 81-82). The mother went on to depose that she is not in receipt of any child support from the father following the making of the final orders and is “in dire financial need” (Mother’s affidavit filed 13 January 2023, paragraphs 83-84).
The mother deposes she owes in excess of $470,000 in legal fees, noting the majority is due to the various applications the mother has had to bring as a result of the father’s non-compliance. Included in that sum is more than $50,000 of outstanding Counsels’ fees. These fees are to be paid upon final property settlement (Mother’s affidavit filed 13 January 2023, paragraphs 85-87).
With respect to the mother’s ability to meet the expenses on behalf of the children since the April 2022 orders the mother said:
I have been required to meet various expenses on behalf of the children including but not limited to their food, schooling, extra-curricular activities, psychologist fees, and other medical appointments.
As my income is insufficient to meet the expenses, I have obtained a loan from my brother, [Mr P] in the sum of $5,000. My friend, [Ms AJ], also loaned me $4,000 to assist. The terms of these loans is that they are payable upon receipt of my cash adjustment.
(Mother’s affidavit filed 13 January 2023, paragraphs 89-90)
Both parties say that they are in tightened financial circumstances, although the father put on no actual evidence to support his claims. The mother, in evidence, is in a parlous position.
Whether legally aided
There is no evidence before me that the mother is legally aided. The father acts for himself.
Conduct of the parties
I do not consider this subsection to be relevant. It is more about matters of disclosure and the like.
Failure of a party to comply with previous orders
The father admitted that he did not sign the document which the bank required to sell the house pursuant to the default provisions in the April 2022 Order. However, the father made serious allegations against the mother and her solicitor that they only sent the request for “entrapment” of him. I do not accept what he said; it makes no sense when the mother needed the document to be signed so both she and the father could get their financial entitlements as ordered.
It remains that the father did not sign the document as requested and, in doing so, then put the mother to the cost of seeking relief before the Court as ordered by Christie J on 13 January 2023.
Wholly unsuccessful
I indicated to the father I did not consider that applied given the mother’s order was made on an ex parte basis.
Offers
There was nothing before me on this consideration.
Any other matter
No one made a submission within this subsection.
Disposition
The mother seeks a very modest sum in costs. As the father admitted, he did not sign the form that was sent to him. That put the mother to the cost of securing orders from the Court. I consider that to be a circumstance that justifies an order as to costs in the mother’s favour.
However, noting the father alleges he is under financial stress (as a consequence of his non-compliance with the final orders that the children live with the mother) and this impacts (he alleges) on the children, I will not order he pay those costs straight away.
At the hearing I asked the father that if I were to order costs, whether he wanted to make any submissions about the costs coming from his entitlement when the former matrimonial home proceeds were being distributed. He did not like that idea.
There was no challenge by the father to the quantum sought. I consider it most reasonable in the circumstances.
Due to the justifying circumstance I have identified (i.e. the father not signing the form as requested), I will order that the mother have her costs in the sum of $888.24 but that this be paid from the father’s entitlement when the house proceeds are being distributed. In other words, I will increase the payment to her in the orders by that sum.
It makes sense that the sum come from the settlement proceed upon the sale of the house. In the event the sale has settled, then I give the father 28 days to make the payment. There is no magic in that other than that being the time frame to file appeals.
Property
As set out above, on 5 October 2022 the father filed an Initiating Application containing new parenting and property orders. There was nothing on the face of that document that engaged s 79A of the Act.
On 31 October 2022, a Senior Judicial Registrar referred the father to s 79A of the Act and suggested the father obtain legal advice. The father was directed to file an Amended Initiating Application setting out the orders sought by 19 November 2022.
No such amended document was filed.
I said similar to the father with respect to s 79A of the Act when the matter first came before me on 5 December 2022. I dismissed the property orders with his agreement.
Nevertheless, at the hearing on 24 January 2023, the father sought property orders in his Case Outline. That is not the way to apply to the Court. The father had already been directed to file an Amended Initiating Application but did not.
The relevant issue set out in his Case Outline was this:
Determination of allocation of monies resulting from the sale of the family Property (being [C Street, Suburb E], NSW being the whole of the land contained in folio identifier […]).
Respectfully, that issue has been determined and the father did not prosecute his appeal against the final property orders.
I indicated to the parties that they needed to address me on what jurisdiction I had to entertain further s 79 property proceedings (albeit in his Case Outline) given that the power under s 79 was exhausted (Gabel & Yardley (2008) FLC 93-386).
By the time we reached this part of the hearing it was close to 6.00 pm. To save the parties the expense of coming back again for submissions on the s 79 issue, I made the following directions:
7.By 4.00 pm 31 January 2023 the father will provide no more than five written pages as to how he contends the Court has jurisdiction to entertain any the property orders he agitates, for in circumstances where he has final s 79 property orders and his appeal of same was dismissed.
8.In the event the father files more than five pages, pages six and following will not be read.
(Orders 7 and 8 of the order dated 24 January 2023)
Notwithstanding the very clear terms of those orders, the father filed a 31 page affidavit in small font. I will not have regard to paragraphs 6-16 as they concern parenting and Rice & Asplund. Paragraphs 17-36 again go through the mother’s suicidal ideations which were before Christie J in the parenting aspect of the trial and again before me in the Rice and Asplund considerations.
I will have regard to paragraphs 37-79, which covers three pages albeit in very small font. There the father now engages to some degree with s 79A of the Act. However, some of those submissions are in the style of appeal submissions and others complain, essentially, that the sum certain ordered in the 2022 April Orders are now “punitive” and that there was no rise and fall clause in the orders in the event the property sold for more or less than the figure of $1.3 million agreed by the parties – but as is clear from the April 2022 Reasons at [223], that the father did not seek a rise and fall clause.
Despite being directed to file an Amended Initiating Application he did not. The property orders sought by the father in his Case Outline of January 2023 (which is no substitute for what was ordered) does not engage with s 79A – he just wants to divide up the property proceeds in a way different from what was ordered.
What was before me on 24 January 2023 (and before me on 5 December 2022 and the Senior Judicial Registrar on 31 October 2022) was the father’s contention that fresh s 79 orders could be made. I do not agree. That power has been exhausted. The authorities are clear.
There is no point in me further traversing the father’s submissions on s 79A because he has no actual Application before me invoking that s 79A jurisdiction. Further, there is no Order for me to make, as the s 79 jurisdiction has been exhausted and the s 79A jurisdiction is not enlivened.

I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 15 February 2023

File number:	SYC 7660 of 2020
Judgment of:	BRASCH J
Date of judgment:	15 February 2023
Catchwords:	FAMILY LAW – PARENTING – Where final parenting orders made in April 2022 – Where children’s residence changed from father to mother – Where father’s appeal dismissed - Where mother has the benefit of a Recovery Order – Where it was anticipated the children residing with the mother would be fraught – Where father applies for new parenting Orders – Where s 79A of the Family Law Act is not a vehicle to set aside parenting orders - Where the Department of Communities and Justice is supporting family - Where Rice & Asplund (1979) FLC 90-725 discussed – Where further litigation about the children is not in their best interests - Application for new parenting orders dismissed FAMILY LAW - COSTS – Where mother seeks costs of an Application in a Proceeding to facilitate sale of the former matrimonial home pursuant to final property orders – Where father did not sign a required form – Costs Order made FAMILY LAW - PROPERTY – Where final property orders made in April 2022 – Where father’s appeal dismissed - Where father filed an Initiating Application for fresh property orders – Where father did not like the final property orders – Where father twice previously told to consider s 79A of the Act – Where directions made for father to file an Amended Initiating Application – Where the father did not - Where the father’s new property orders dismissed by consent – Where father again seeks fresh property orders in his Case Outline – Where submissions on jurisdiction to make fresh s 79 property orders were ordered – Where father did not comply with those orders - Where power to make orders pursuant to section 79 has been exhausted - Where Gabel & Yardley (2008) FLC 93-386 followed - Where the court has no jurisdiction to entertain fresh s 79 property orders
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 60CC(3)(a)-(m), 64B(1), 69ZT, 69ZW, 79, 79A, 79A(1)(d), 91B, 106A(1), 117, 117(1), 117(2), 117(2A),117(4), 117(4A), 117(5), 117(6)
Cases cited:	Fickling & Fickling (1996) FLC 92-664; [1996] FamCA 13 Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162 Hedley & Hedley [2019] FamCA 946 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 King & Finneran (2001) FLC 93-079; [2001] FamCA 344 Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 McEnerney & McEnerney (1980) FLC 90-866 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Phillips & Hansford (2019) FLC 93-917; [2019] FamCAFC 165 Rice & Asplund (1979) FLC 90-725 Searson & Searson [2017] FamCAFC 119 SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16 Trewitt & Brock [2021] FedCFamC1A 9 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 [2006] FamCA 204
Division:	Division 1 First Instance
Number of paragraphs:	191
Date of last submissions:	6 February 2023
Date of hearing:	24 January 2023
Place:	Sydney
The Applicant:	Litigant in person
Solicitor for the Respondent:	Minors Family Law
Solicitor for the Independent Children's Lawyer:	Russell Kennedy Lawyers NSW

SYC 7660 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SANDERS Applicant
AND:	MS SANDERS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BRASCH J
DATE OF ORDER:	15 FEBRUARY 2023