SANDWELL & SANDWELL

[2021] FamCA 159

FAMILY COURT OF AUSTRALIA

SANDWELL & SANDWELL [2021] FamCA 159

FAMILY LAW – CHILDREN – With whom the children shall live and spend time – Parental Responsibility – Where the children currently live with the mother and spend two periods of time with the father per week.

FAMILY LAW – CHILDREN – Travel to Non Hague Convention Country – Where the mother wishes to travel annually – Where the father opposes all overseas travel by the children – Where mother has ties to Australia – Where there is a benefit to the children in spending time with the maternal family in Thailand which outweighs the risk of non-return.

FAMILY LAW – FINANCIAL AGREEMENT – Where the wife seeks a declaration that a Financial Agreement under Section 90B FLA signed by parties prior to marriage, is not binding or if it is, that the Agreement be set aside pursuant to Section 90K(b), (d) or (e) – Where the husband opposes the wife’s application – Application of the wife dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 90G, 90K

Hoult & Hoult (2013) FLC 93-546
Thorne & Kennedy (2016) FLC 93-737
Line & Line (1997) FLC 92-729

APPLICANT: Ms Sandwell

RESPONDENT: Mr Sandwell

INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

FILE NUMBER: NCC 3665 of 2017

DATE DELIVERED: 25 March 2021

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 19-21 February 2020; 13, 16-17 March 2020; 23-26 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harris

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Mr Cummings SC; Ms Lioumis

SOLICITOR FOR THE RESPONDENT: Mullane & Lindsay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

Parenting

1. That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to X born … 2016 and Y born … 2017 (“the children”) are discharged.

Residence

1. That the children live with the mother.

Parental Responsibility

1. That the mother have sole parental responsibility for the long term welfare of the children, including, but not limited to, education, specialist medical treatment and religious instruction.

2. When making a decision about the long term welfare of the children or either of them, the mother shall:

   (a)Inform the father in writing of the decision to be made;

   (b)Invite the father to express his views on the topic, including any alternate proposal by him, within a stated period;

   (c)Consider the response of the father if received in a timely way;

   (d)Advise the father in writing of the decision taken.

3. That each of the parents have parental responsibility for the day to day welfare of the children when they are living or staying with a parent.

Spend time with

1. That the children spend time with the father as follows SUBJECT to compliance by the father with Orders 7-11 inclusive of these orders:

   6.1For a period of three months on each Friday from 9.00 am to 5.00 pm Saturday, commencing 2 April 2021 [Easter];

   6.1.1Changeovers shall be by the parent or his/her nominee and supervised by T Contact Centre or by another professional changeover service as agreed between the parties;

   6.2Thereafter and until X starts school in 2022, from 3.00 pm Friday until 5.00 pm Sunday, commencing 25 June 2021;

   6.2.1Changeovers shall take place at preschool or JJ Shopping Centre or such other place as agreed in writing;

   6.3From commencement of school by X in 2022:

   6.3.1Each alternate weekend from after school/preschool Friday to 6.00 pm Sunday, extending on a weekend that falls in the term holiday periods to 3.00 pm Friday to 10.00 am Tuesday;

   6.4From commencement of school by Y in 2023:

   6.4.1During term time:

   6.4.1.1Each alternate weekend from after school Friday to before school Monday extending to before school Tuesday when Monday is a public holiday recommencing on the first weekend of the subsequent school term;

   6.4.2During school holiday periods commencing after Term One in 2024:

   6.4.2.1In odd numbered years from the last day of school term until 5.00 pm on the day that is the middle of the holiday period commencing in even numbered years from the mid-point day of the holiday period until 5.00 pm on the Sunday before school term begins.

Engagements with psychiatrists

NOTING that the father has expressed willingness to engage with psychiatrists in the manner generally recommended by the three expert witnesses:

1. The father shall consult with Dr E or such other consultant psychiatrist as Dr E recommends or approves (“the treating psychiatrist”).

2. The father shall consult with a psychiatrist (“the monitoring psychiatrist”) recommended or approved by the treating psychiatrist for the purpose of monitoring the mental health of the father and administering drug and alcohol testing.

3. For a period of five years from the date of these orders the father shall engage with both a treating psychiatrist and a monitoring psychiatrist as follows:

   (1)      For a period of three years, not less than quarterly;

   (2)      For a further period of two years, not less than bi-annually.

4. The father shall advise the Independent Children’s Lawyer and the mother in writing of the name and contact details of the treating psychiatrist and the monitoring psychiatrist.

5. The father shall authorise:

   (1)Both the treating and the monitoring psychiatrist to maintain communication with each other about his state of mental health;

   (2)The monitoring psychiatrist to communicate to the mother any concerns which the monitoring psychiatrist may hold or be aware of about the father’s presentation in terms of his mental health as it might affect his parenting capacity, including, but not limited to:

   a)Non-attendance for appointments;

   b)Failure to make appointments;

   c)Failure to undertake drug and alcohol testing as directed.

Specific Issues

1. The mother shall authorise the preschool or school which the children may attend to provide to the father (at his cost if any) copies of all information about the progress and welfare of the children including school reports, newsletters and applications for school photographs.

2. The father be restrained from photographing the children, or either of them, for the purpose of demonstrating that they have been harmed by the mother.

3. Each parent shall notify the other as soon as reasonably possible of any hospitalisation or serious injury suffered by the children in their care.

4. Each parent is to authorise any treating medical practitioner to provide information or reports about the children to the other parent.

5. The parents are to communicate about the parenting arrangements for the children by text message.

6. The parents are to provide each other with current email addresses and mobile telephone numbers and any change to these details must be advised to the other parent within 48 hours.

7. Each parent is restrained from denigrating the other parent or members of the other parent’s extended family, to or in the presence of the children or either of them, and will use their best efforts to ensure that third parties are similarly restrained and will remove the child or children from the presence of any person indulging in such denigration.

Overseas Travel

1. Each parent is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the children X born … 2016 and Y born … 2017, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on that Watch List for a period of 12 months NOTING THAT the most recent order placing the children on the Airport Watch List was made on 15 September 2020 for a period of 12 months.

2. At the request of the mother, the father shall do all acts and things necessary, including signing relevant applications, to enable the mother to obtain Australian passports for each of the children and visas as required.

3. The father may at his discretion retain the passports in his possession at all times when the children are not travelling overseas if he wishes to do so.

4. After the expiry of Order 19 made herein and on the further condition that travellers entering Australia (at the date of expiry) are no longer required to enter quarantine on return to Australia after overseas travel, then the mother may travel to Thailand with the children for a period of up to four weeks in each alternate year PROVIDED that the mother gives the father on each occasion not less than twelve weeks notice of intention to travel prior to the proposed date of departure NOTING that time with the father shall be suspended during such periods of travel.

5. On receipt from the mother of the notice of intention to travel the father shall provide the passports of the children to the mother.

6. No less than four weeks prior to departure the mother shall provide to the father an itinerary with flights details, copies of return tickets for herself and the children, proposed dates of travel and contact details for herself and the children in Thailand.

7. The Independent Children’s Lawyer shall as soon as practicable provide to the monitoring psychiatrist and to the treating psychiatrist the following documents:

   (a)       These orders and reasons for judgment;

   (b)       The reports of the Single Expert Dr C dated:

   (i)8 August 2018; and

   (ii)28 January 2018.

   (c)The affidavit with report annexed of Dr H dated 15 April 2019;

   (d)The joint statement of Expert Conference on 5 September 2019, experts being Dr H and Dr C;

   (e)The affidavit dated 10 July 2020 with report annexed of Dr E, consultant psychiatrist;

   (f)The name and contact details of the mother Ms Sandwell.

8. The Independent Children’s Lawyer shall be discharged after compliance with Order 25 herein.

Financial Agreement

1. Pursuant to Section 90G(1B) of the Family Law Act 1975 (Cth) the Court declares that the Financial Agreement of 12 March 2015 (“the Agreement”) is binding on the parties.

2. The Application of the wife to set aside the Agreement is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandwell & Sandwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3665 of 2017

Ms Sandwell

Applicant

And

Mr Sandwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders for two children, girls aged by conclusion of trial four and a half years and three years old respectively, and also for orders relating to a Financial Agreement (“the Agreement”).

2. The mother is a Thai National. She has had permanent residence status hoping soon to be an Australian citizen. The husband is Australian.

3. The parties met in Thailand in 2012. The mother first entered Australia on 6 December 2013.

4. The parties do not agree on the date the relationship commenced. It was either mid-2013 (mother) or late 2014 (father). Given the willingness of the mother to travel to Australia to stay with the father and the time, effort and money the father and his parents put into obtaining a visa for the mother to do so, it was more likely to have been in mid-2013.

5. The parties became engaged to marry in late 2013.

6. On two different dates in March 2015 the parties each signed a Financial Agreement now the subject of dispute.

7. The parties married in 2015. The children were born in the next two consecutive years.

8. The parties separated in dramatic circumstances in the second half of 2017 before the birth of the second child.

9. The marriage endured for approximately two and a half years. The parties are now divorced.

10. The children live with the mother and currently spend time with the father pursuant to orders made in this Court on 26 October 2018, varied by the Full Court on 5 February 2019 after a partially successful appeal by the father.

11. The varied orders provide for two six hour periods per week, unsupervised, with changeover through a supervision facility.

The Parties

The Applicant Wife/Mother – Ms Sandwell (“the mother”)

1. The mother was born in Thailand. Her first language was Language R spoken with family and friends. Her second language is Thailand, the language she was taught in at school. Her third language is English which was a compulsory subject for the mother at school. The mother lived and worked in Thailand until she met the father.

2. The mother was 35 years at date of trial. She had been living in Australia for approximately seven years. She has permanent resident status and has been approved for Australian citizenship. Due to current COVID-19 health restrictions on numbers permitted to gather, the ceremony of conferral has not yet taken place.

3. The mother is not currently in paid employment. She provides full time care for the subject children. That may change in two years time after both children have started school.

4. The mother currently lives in Suburb N, a suburb of City O. Her household consists of herself and the two subject children.

5. The mother denies a current relationship.

The Respondent Husband/Father – Mr Sandwell (“the father”)

1. The father was 37 years at date of trial. He owns and operates a business acquired from his parents. He lives and works in City O in NSW.

2. The father is in a domestic relationship with Ms P, who is currently 41 years of age. Ms P was engaged as a nanny for the elder child in November 2017 at a time when the child was in the sole care of the father.

3. The husband’s household consists of himself and Ms P.

The Trial

1. The trial was set down for 10 days, in two blocks, commencing 19 February 2020 and due to be completed on 20 March 2020.

2. The mother and the Independent Children’s Lawyer (“ICL”) were represented by solicitor and counsel; the father by a solicitor and Senior and Junior Counsel.

3. On 17 March 2020, the morning of the seventh day of trial, the proceedings were adjourned in accordance with COVID-19 health restrictions on the number and proximity of people in the courtroom.

4. Fresh dates for the four remaining days of face to face trial were allocated for 23-26 November 2020.

5. The trial concluded ultimately within time.

6. Judgment was reserved.

The Applications – (1) Parenting

The Mother

1. By her Amended Initiating Application filed 3 August 2018, the mother had sought residence, sole parental responsibility and such time with the father as ordered by the Court.

2. Contained within the Case Outline document put forward for the mother in February 2020 was a Minute of Order[1] setting out a program of proposed time progressing over two years to a final position of blocks of time not exceeding six hours:

   ·On both days (for six hours) of each alternate weekend;

   ·On one weekday afternoon (three-four hours) each fortnight during school terms;

   ·On one weekday each week (six hours) in school holiday periods;

   ·On each child’s birthday (three hours) and on Christmas Eve (six hours) each year.

   [1] Exhibit 2.

3. There were other specific orders proposing obtaining of passports and overseas travel; restraints on conduct of the husband; provision of information and communication.

4. After the evidence had been completed in November 2020 the mother, to her credit, put forward a revised Minute of Order[2] proposing more defined time for the children including overnight time. The maximum length of stay to be three nights commencing in 2023.

   [2] Exhibit 39.

5. The mother also proposed a regime of attendance by the father on a psychiatrist and for drug testing.

The Father

1. By his Amended Response filed 23 January 2019, the father had sought residence for the children with himself, equal shared parental responsibility and time with the mother from 9.00 am Monday to 5.00 pm Wednesday and on special occasions.

2. Contained within the Case Outline document put forward for the father in February 2020 was a Minute of Order[3] proposing equal shared parental responsibility, conceding residence initially to the mother, progressing over a period of two and a half years to a final position as follows:

   ·Week about equal shared time for each parent during school terms (Friday to Friday);

   ·Half school holidays;

   ·Other special times;

   ·Reasonable uninterrupted communication with the other parent.

   [3] Exhibit 3.

3. There were other specific orders including restraints on the parents living beyond the City O/Region Q area, restraints on any overseas travel for the children, restraints on personal conduct and provision of information.

4. Ultimately in submissions in November 2020, the father expressed willingness without admissions to being restrained from using illicit drugs and agreed to keep attending on a consultant psychiatrist.

5. As an additional and significant concession, the father generally did not oppose what the ICL put forward by way of parenting arrangements, with the exception of allocation of parental responsibility. The father continued to press for equal shared parental responsibility.

The ICL

1. The ICL did not have a preliminary position.

2. Ultimately the ICL proposed in a Minute of Order[4] that the children should live with the mother.

   [4] Exhibit 37.

3. Time with the father was proposed for a gradually expanding pattern culminating after two years (from conclusion of trial) in a total of five nights per fortnight and half school holidays.

4. The ICL proposed in submissions that there be no overseas travel without the prior written consent of the other parent.

5. There were detailed proposals about the father’s attendance on psychiatrists and a method of the mother being alerted in the event of a deterioration in the mental health of the father. Those proposals arose from the oral evidence of experts.

6. The ICL proposed in submissions that it was too soon, after more than three years of wide ranging conflict, for the parties to share parental responsibility. Rather the mother should have sole parental responsibility with consulting and reporting obligations.

7. In my view it was a thoughtful position to take, balancing the undoubted commitment of the father to the children with the need to protect the children from conflict until the parental relationship was more harmonious and stable.

Conclusion

1. By the conclusion of trial the compass of the dispute in relation to time with the father had reduced to at least three days per fortnight and no block holiday time, or at most five days per fortnight with half school holidays.

2. There were other areas of disagreement to be determined by the Court but each of the parents moved considerably in relation to time spent with the father. I attribute this shift to the impact of the evidence of the three experts and the balanced position of the ICL.

History of Relevant Events

1. The parties met in 2012 in Thailand. The mother was working as the manager of a business. The father had a Thailand girlfriend and was living with her in Thailand.

2. In 2013 the father returned to Australia. The parties began a conversation on social media.

3. In June 2013 the father invited the mother to come to Australia asking her to work in his cleaning business. The mother sought and obtained the approval of her parents for a trip to Australia “to visit Mr Sandwell for three months.”

1. On 8 July 2013 the mother applied for a tourist visa which was swiftly refused on the grounds that the mother would not have sufficient incentive to leave at the end of the period.

2. The father asked for and obtained help from his father. Solicitors known to the paternal grandfather were instructed.

3. In September 2013 the mother lodged another application for a tourist visa the purpose of the visit being to visit the father, described as “her friend and boyfriend”. The father supported the application.

4. This second application was also refused for the reason that the mother would not have “adequate support” for her stay.

5. A third application was prepared and lodged on 18 November 2013 by the solicitors. The respective fathers prepared statutory declarations in support of a tourist visa referring to the depth of feeling of the father for the mother.

6. The father invited the mother to a holiday in Country S. The mother accepted. The father sent tickets for the return flight from Thailand to Country S for the mother. The father paid for the accommodation.

7. During the Country S holiday the father proposed marriage to the mother and she accepted. He bought her a ring which she wore.

8. It is unclear as to what the father told his parents about this event. Certainly his own father denied any knowledge of it when he was cross-examined in November 2020. The father did tell his sister, who responded directly to the mother with warm enthusiasm.[5]

   [5] Affidavit of the mother filed 24/12/2019, par 44 and annexure M6.

9. On 4 December 2013 the third application for a tourist visa was granted. The mother resigned from her job in Thailand and told her family she was going to Australia to live and work with the father.

10. The father provided and sent to the mother an open return flight ticket to Australia.

11. On 9 December 2013 the mother travelled to Australia. The father met her at Sydney Airport. The parties went to the home of the father’s parents where the mother met the father’s mother. They then drove north to the father’s home in City O.

12. The mother stayed with the father in City O and also with his parents in Sydney. I accept that the reason for the mother’s trip to Australia was to spend time with the father.

13. In March 2014, after 3 months, the mother returned to Thailand as a condition of her visa.

14. In April 2014 the father travelled to Thailand to meet and spend time with the mother’s family. There were discussions about the parties being married in the village of the mother’s family, in December 2014.

15. On 21 May 2014 the mother returned to Australia on a three year student visa.

16. The relationship of the parties was unstable. During 2014 the mother was directed by the father to leave his house approximately four times. When this happened the mother stayed at a hotel for a maximum of two nights.

17. Similar instances occurred in 2015. The father concedes use of illicit drugs, heavy drinking and behaviour which he now regrets such as verbal abuse of the mother.

18. What the mother did not know, because the father had not told her of it, was that the father had a history, reaching back to early teenage years, of episodic mental illness aggravated by abuse of alcohol and marijuana.

Marriage of the parties

1. In March 2015 the parties signed a Financial Agreement.

2. In 2015 the parties married in a small ceremony in Australia. Three days later there was a wedding celebration in Thailand although not in the mother’s village.

3. On 21 October 2015 the mother was granted a bridging partner visa to take effect upon expiry of her student visa.

4. On 14 April 2016 the mother attended hospital in pain. The mother describes the father as abusive and intoxicated in the hospital. The hospital notified the Department of Communities and Justice of the elder child’s birth.

Birth of first child

1. In 2016 the elder child X was born.

2. In early 2017 before the first child turned one, the mother learned she was pregnant with the second child.

3. Around mid-2017 the father had asked the mother to find $200 in his pocket and when she could not find the money, the father accused her of stealing it and sending it to her family in Thailand. The mother denies she ever stole from the father. The father continued to yell and denigrate her and call her a thief.

Child left in the car

1. In July 2017 the mother left the elder child asleep in the car in a shopping centre car park in order to use the bathroom. The centre’s security observed the child in the car and located the mother. The mother telephoned the father who attended to assist. Police were not called.

2. The mother was thoroughly cross-examined on this incident on the basis that she was at least indifferent to the welfare of the child if not negligent. I do not consider that she was.

3. The mother was five months pregnant with the parties’ second child at that time. She thought the child would do better undisturbed, rather than being woken and carried up to public toilets. There was a risk of harm to the child arising from being alone in the car which the mother acknowledged in hindsight.

4. In July 2017 the father asked the mother to bring the elder child to his work. The mother did so and the father began to verbally abuse her in front of the child. The father took the mother’s car keys and the child, then took the mother’s telephone and smashed it on the floor. The paternal grandfather was called and assisted in returning the child to the mother and getting her car keys back.

Mother travels to Thailand alone

1. In around August 2017 the mother intended to travel with the elder child to visit her family in Thailand for two weeks. She had thought the father would come too. The parties began to argue about the trip. The father thought it would be unsafe for the unborn child and one of the two doctors consulted by them agreed with him.

2. The mother decided to go, with the child.

3. As the mother was organising for the trip, the father and the paternal family told the mother she could not take the elder child X with her. The father then packed a bag for the elder child and told the mother he was taking the child to the paternal grandparents which he did. It is probable that the father believed this action would deter the mother from leaving.

4. On 20 August 2017 the mother travelled to Thailand while X was in the care of the father and paternal family.

5. The mother stayed with her parents for two months. During this time the father blocked the mother on social media. Some information was provided to the mother about the child but less than she would have liked.

6. The father’s parents packed up the mother’s belongings and sent them to Thailand.

7. On 18 October 2017, the husband served the mother with a “Notice of Separation”. The mother considers this to be the date of separation.

8. The husband paid the mother $1.00 as per clause 7.1 of the Agreement.

9. On 29 October 2017 the mother returned to Australia. At this time, the mother was in the final weeks of her pregnancy.

10. The father declined to allow the elder child to live with the mother after her return.

Proceedings in the Federal Circuit Court of Australia (“FCC”)

1. On 24 November 2017 the mother initiated proceedings in the FCC for the recovery of the elder child and for interim property orders.

2. She filed a Notice of Risk alleging the father perpetrated family violence, had withheld the child from the mother, abused alcohol and had controlled the mother’s access to finance, accommodation and transport.

Birth of second child

1. In 2017 the younger child Y was born.

Response by father

1. On 4 December 2017 the father responded to the mother’s application seeking sole parental responsibility, residence and for the mother, on an interim basis, to spend supervised time with the eldest child.

2. The father also filed a Notice of Risk alleging the mother slapped the eldest child across the face and physically disciplined her, that the mother acts erratically, left Australia when she was seven months pregnant against medical advice, left the eldest child in the car unattended for 20-30 minutes and the mother left the eldest child and went to Thailand.

3. On 5 December 2017 orders were made in the FCC restraining the parties from removing the children from Australia and placed their names on the airport watch list.

4. On 14 December 2017 further interim orders were made.

5. On 9 May 2018 further orders were made providing for equal shared parental responsibility, the elder child to live with the father and the younger child to live with the mother. The father was to spend time with the youngest child two days a week and the mother was to spend time with the eldest child two days a week.

Property proceedings finalised

1. On 15 May 2018 the father transferred $23,392.82 and an amount of $90,976.92 to be paid into a joint account.

2. In a letter to the mother’s solicitor the father stated that the payment was in accordance with the Agreement and this means that the parties’ property proceedings are brought to an end.

3. The $23,392.82 was discharging the Agreement and the $90,976.92 was the balance of the discretionary trust payments that had been paid to the mother.

4. The mother states she never received the trust payments.

Report of Single Expert – 8 August 2018

1. On 17 May 2018 an order was made for Dr C, a psychiatrist, to be appointed as a Single Expert to enquire into and report upon matters relating to the welfare of the children.

2. The Single Expert Report was prepared and released.

3. The observations of the Single Expert on the current mental state of the father and the revelation of his history of mental illness shocked the mother.

4. The mother was diagnosed with an adjustment disorder in April or May 2018. The mother described herself as ‘depressed’ because she was worried for the eldest child.[6] There were no relevant concerns regarding abuse, neglect or family violence by the mother (at [746]).

   [6] Single Expert Report of Dr C dated 8/08/2018, page 8, line 240.

5. The Single Expert noted there is a benefit for the children to engage with their Thailand culture and with people who share their cultural background.

6. The father was reported to have a history of significant protracted psychotic symptoms with associated elevated mood disturbance. At age 19 for at least a period of six months, documents confirmed severe psychotic disturbance with associated altered behaviours and paranoid delusion (at [680]). He also presented as paranoid, guarded and mentally ill when he attended hospital for different reasons in 2007 (aged 24) and 2012 (aged 29) (at [690]). In recent times, the father reported “persistent fixed beliefs” of the mother stealing his money to purchase apartments in Thailand, that the mother was physically harming the children. After assessing the mother and the children, the Single Expert concluded that the father’s fixed beliefs were false:

   The writer is of the opinion that the father has psychiatric diagnoses per DSM-5 consistent with delusional disorder, and alcohol, cannabis and amphetamine use disorders (at [697]). His current presentation of persistent delusions without the reported use of substance strongly support an underlying persistent psychotic disorder, such as delusional disorder (at [707]) or alternatively, schizophrenia (at [709]).

7. The Single Expert expressed significant concerns of emotional harm arising from the father’s comments in the presence of the children about the mother’s alleged abuse and neglect of the children (at [749]). “There is an increased risk to the children of emotional and physical neglect if the father’s psychotic disorder remains untreated, particularly as the children age and attain a greater understanding of language/non-verbal communication”.

8. Complete separation from the father was assessed to be undesirable for the children’s emotional wellbeing because of the children’s positive attachment with the father (at [798]).

9. The Single Expert observed that the father’s parenting capacity was significantly impaired, due to the direct negative influence of his untreated delusional disorder whereby, he freely voiced the delusions during his observation with the children (at [830]).

10. The Single Expert recommended that the father’s time with the children be limited to four hours per week of professionally supervised time until he complies with psychiatric treatment for a full 12 month period (at [801]) with gradual increases of time each year (at [810]). This is due to the Single Expert’s assessment of the father, the father’s parents and his current partner being unable to curtail the father’s expression of his delusional beliefs regarding the mother in the presence of the children (at [808]).

11. The Single Expert strongly recommended complete separation from the father if he did not comply with the psychiatric treatment noting that ongoing contact with a delusional parent is highly emotionally harmful to the children (at [818]).

12. The recommendations were directed to the immediate safety of the children.

Transfer to the Family Court of Australia – 3 September 2018

1. On 3 September 2018 proceedings were transferred by the FCC to this Court.

2. On 26 October 2018 interim orders were made which provided for the children to live with the mother, the mother have sole parental responsibility and for the father to spend supervised time with the children on two days a week for three hours. Restraints were put on the father from photographing the children to verify physical injury and from coming within 100 metres of the mother’s residence.

Appeal by the father

1. The father lodged an appeal against the October 2018 interim orders.

Full Court of the Family Court of Australia

1. On 5 February 2019 Justices of the Full Court upheld the father’s appeal in part setting aside the requirement for supervision of his time with the children.

2. The new orders provided for the father to spend unsupervised time with the children for a block of hours on two days a week with changeovers facilitated by T Contact Centre, F Centre or U Contact Centre.

Application for Appointment of another Expert Witness

1. On 3 May 2019 leave pursuant to rule 15.49 of the Family Law Rules 2004 was granted to the father to adduce evidence from a second psychiatrist in relation to the mental health of the father and for there to be a conference of experts.

2. The psychiatrist appointed was Dr H.

3. Subsequently the father consulted a psychiatrist, Dr E, as a treating physician.

4. On 24 September 2019 directions for trial were given and arrangements put in place for all three psychiatrists to give evidence concurrently.

Watch List orders continued

1. On 14 October 2019 [Amended on 21 October 2019] a registrar of this Court made orders, by consent, restraining the parents from removing the children from Australia and placing the children on the Federal Airport Watch List for a period of 12 months.

2. On 15 September 2020 a further order was made by consent effectively extending the Airport Watch List order for a further period of 12 months. That order will expire in September 2021.

Evidence

1. The documents relied on in respect of the application were as follows: 

The Applicant – Ms Sandwell

(a)Further Amended Initiating Application filed 3/08/2018 superseded by Minute of Order dated 13 February 2020;[7]

[7] Exhibit 2, pages 14–16.

(b)Points of Claim [Financial Agreement] filed 5/11/2019;[8]

[8] Exhibit 40.

(c)Affidavit of Ms Sandwell (mother/wife) filed 24/12/2019;

(d)Affidavit of Ms V (wife’s sister) filed 24/12/2019;

(e)Affidavit of Mr Z (wife’s father) filed 24/12/2019;

(f)Affidavit of Ms AA (friend of wife) filed 24/12/2019;

(g)Affidavit of Ms BB (friend of wife) filed 20/12/2019;

(h)Affidavit of Ms CC (clinical midwifery specialist) filed 20/12/2019;

(i)Affidavit of Ms DD (retired nurse) filed 20/12/2019;

(j)Affidavit of Ms EE (accredited translator) filed 20/12/2019;

The Respondent – Mr Sandwell

(k)Amended Response filed 23/01/2019 superseded by Minute of Order dated 13 February 2020;[9]

[9] Exhibit 3, pages 20-25.

(l)Affidavit of Mr Sandwell (father/husband) filed 24/12/2019;

(m)Affidavit of Ms F Sandwell (paternal grandmother) filed 24/12/2019;

(n)Affidavit of Mr G Sandwell (paternal grandfather) filed 24/12/2019;

(o)Affidavit of Ms P  (partner of father/husband) filed 24/12/2019;

(p)Affidavit of Dr H (psychiatrist and addiction specialist) (Forensic Report) filed 17/04/2019;

(q)Affidavit of Dr E (psychiatrist for father/husband) filed 24/12/2019;

Reports

(r)Report by Dr C [Single Expert] dated 8/08/2018;

(s)Supplementary Report dated 28/01/2019 by Dr C in response to questions;

(t)Joint Report of Single Expert and Dr H dated 5/09/2019.[10]

Oral Evidence

[10] Exhibit 27.

The Applicant Mother

1. The mother speaks English quite fluently. She had occasional difficulty with pronunciation. On occasions she did not comprehend particular idioms and words. At such moments she turned to the Thailand interpreter who was available throughout the trial.

2. There was a strong challenge to the credibility of the mother based on the use of an interpreter in this trial despite her having sworn some past affidavits without benefit of an interpreter. The mother did not have an interpreter when she received legal advice around the wisdom of signing the Agreement in 2015.

3. It is likely that the inference the Court was being asked to make is that the mother was using an interpreter in this trial for legal tactical reasons.

4. I did not form an unfavourable view of the mother in that regard.

5. The mother worked in the hospitality field in Thailand where command of English was required. I accept that her understanding of the English language was good when she first arrived in Australia in late 2013, and has deepened over the years she has lived in Australia.

6. However that does not mean that she should be expected to understand the subtleties of language in the context of cross-examination ranging across parenting and financial controversies.

7. The mother presented as thoughtful, intelligent and straightforward. In my view her use of the interpreter was to be sure of understanding and no more.

The Respondent Father

1. The father gave his evidence in a slow and wary manner. His answers were vague and uncertain at times. For instance, his response to he and the mother having opened a joint bank account in January 2014 was “I don’t think so”. When shown the opening statement to that account he answered “yes”.

2. The evidence suggests that the father was inclined to conceal from his parents, particularly his father, matters where he thought they would disapprove. For instance the paternal grandfather expressed the view that “Mr Sandwell was busy with his business (in mid-2014). He wasn’t looking for a relationship”.

3. The evidence was very much otherwise. The parties had already become engaged, the father was talking to migration agents and the parties had opened the joint account.

4. The father obviously found it difficult to have his mental health discussed in Court.

5. His own father in the witness box robustly denied any knowledge of mental illness for his son. Whatever the father had said to a psychiatrist in September 2015 was “him probably exaggerating.” He thought admission to hospital for the father in 2007 was for “a cut finger.” It was not.

6. Mr G Sandwell also rejected the proposition, supported by the evidence before me, that the father spent money on alcohol and drugs regularly.

7. There may have been other reasons for the slow elliptical approach of the father to giving evidence but the historical concealment of matters by the father from his father is one explanation.

The Law - Parenting

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

1. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

2. The Court must apply a presumption (s 61DA of the Act) when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

3. The presumption does not apply in summary if there are reasonable grounds to presume that a parent of the child has engaged in abuse of the child or family violence.

4. Further, the presumption may be rebutted by evidence that satisfies the Court that equal sharing of parental responsibility would not be in the best interests of the child in question.

5. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

6. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

Should the mother have sole parental responsibility for long term decision making or should the parents have equal shared responsibility?

1. A Court must make orders based on the evidence before it. Although the indications are positive for the father having improved mental health and stability in future, there is no certainty about that.

2. What is made certain by the orders is that the mother will be advised of any deterioration in the mental health of the father and of any conduct inconsistent with maintaining a therapeutic relationship with a treating psychiatrist.

3. There are reasonable grounds to presume that the father committed family violence. His conduct was most probably related to his untreated mental state but  that may not be the complete explanation. The presumption is rebutted by psychiatric evidence of the vulnerability of the father to becoming unwell especially when using drugs and alcohol.

4. The mother should have sole parental responsibility for the long term decision making with a mechanism for consultation with the father and communication of decisions to him.

5. Day to day decisions can be taken by each parent when the children are in the care of that parent.

Residence

1. Other than for a period from August 2017 for the elder child in the care of her father and paternal grandparents, both children have lived with the mother who is their primary attachment. It is uncontroversial that the mother provides a very good level of care.

2. By the end of the trial the father no longer sought to be heard against the children continuing to live primarily with the mother.

Time and Communication

1. All parties agreed there should be defined orders for time for the children with the father, gradually increasing subject to compliance with orders relating to therapeutic treatment for the father and advice to the mother.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have a meaningful relationship with each parent and there is a benefit in those relationships being maintained.

2. Both parties are devoted to the children and committed to a lifetime engagement.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect the children from physical or psychological harm.

2. The father is a loving, somewhat anxious, father who would not intentionally harm or even upset the children. After separation he believed that the mother was deliberately hurting the children.

3. The father is vulnerable to mental illness, bouts of which he has suffered periodically since his teenage years. It is an agreed fact that in 2003 he was very seriously ill for at least six months, suffered psychosis and was scheduled to hospital.

4. There has been most extensive and helpful expert evidence in this case.  First from the Single Expert who diagnosed the father as having a delusional disorder being a fixed belief that the mother was harming the children (and also in relation to financial matters).

5. The father reacted with alarm to the implications of that diagnosis. Additional psychiatric evidence from Dr H was allowed and ultimately three experts were present in Court for cross-examination. The third being a treating psychiatrist for the father, Dr E.

6. The optimum course would have been for the father to have presented evidence about his mental health history himself.

7. The report of the Single Expert prompted the father to consult two psychiatrists, one relevantly specialising in drug and alcohol addiction, the other a consultant psychiatrist who has supported the father through these proceedings.

8. The risk analysis required of the Court is to weigh the likelihood of risk of harm against the magnitude of harm to the children if a relevant event occurred.

9. If the father became floridly ill, psychotic and lacking all insight into his own mental state the risk to young children is obvious.

10. The likelihood of his doing so is greatly minimised by his willingness to submit to what the experts jointly recommended.

11. That is to maintain a therapeutic relationship with a treating psychiatrist and also to be monitored by another psychiatrist who would be authorised as a conduit for information to the mother if there was reason for concern. Drug and alcohol testing would be an integral part of this therapeutic work.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children were aged a little over two years, and eight months respectively when observed by the Single Expert on 8 August 2018.

2. At that time X was living with her father and spending four days, two nights with her mother. Y was living with her mother and spending four hours per week with her father.

3. The children appeared to be relaxed and comfortable with each parent and developing normally.

4. X did ask for her mother several times. She had, at time of observation, only recently begun spending more substantial time with her mother.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children were assessed in 2018 to have “a strong emotional bond and attachment to both the father and the mother.”[11]

   [11] Single Expert Report of Dr C dated 8/08/2018, page 24, lines 761-769.

2. The children were assessed to be more attached to the mother, to have a close relationship with both parents and not unduly aligned to either.[12]

   [12] Single Expert Report of Dr C dated 8/08/2018, page 24, lines 770-779.

3. The evidence supports a finding that those bonds and attachments are still in place.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Each parent has at all times wanted to fully participate in the lives of the children. For each that has been impossible at times.

2. The mother expected to communicate with the elder child from Thailand in 2017. The father blocked her on social media. No calls were permitted. Information was minimal.

3. The mother returned to Australia in late 2017 and commenced these proceedings in the FCC. Days later she gave birth to the second child.

4. The mother’s time with the elder child began in mid-December 2017 pursuant to Court orders as did the father’s time with the new baby.

5. In October 2018, after the release of the Single Expert Report, orders were made in this Court for both children to live with the mother and spend short periods of supervised time with the father.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. Post separation the paternal grandfather provided financial support of $2,500 per month to the mother until June 2018.

2. The father pays child support pursuant to an assessment.

3. The mother raises no complaint about financial support for the children.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The children will not experience change in their circumstances likely to affect them adversely.

2. They will continue to live with the mother and slowly spend more time with the father and also the paternal grandparents.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Each of the parents has the capacity to meet the emotional and intellectual needs of the children.

2. The father developed obsessive ideas about the mother harming the children and became irrationally fearful for their safety. The mother became defensive and upset in response.

3. Both parties are now in a better position to avoid recurrence of that situation.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are girls aged four and a half and three years of age respectively at date of trial.

2. The children are healthy and well developed.

3. The children have one Australian and one Thailand parent. Realistically they will become at least bi-lingual in English and Thailand language.

4. There is some evidence that the paternal grandparents were not enthusiastic about the children learning and speaking the Thailand language. That may have been a reaction to the shock of the mother returning home to Thailand in 2017 and their belief at that time that she would not be returning to Australia.

5. If that were to continue to be the case the children may become quite offended, seeing that attitude as critical of their mother and extended maternal family in Thailand, and of themselves.

6. The children belong to both cultures and will no doubt enjoy and benefit from travelling to Thailand and learning about that country when it becomes possible to do so. If they can speak at least some Language R and/or Thailand language the experience will be enhanced for them.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The Mother

1. The mother travelled to Thailand in August 2017 for family support because she was unhappy in her marriage. She was well advanced in her pregnancy with the second child. When the father would not consent to the older child travelling with her, she made the decision to travel alone. She did not provide information about a date of return.

2. It is likely that she expected to be able to readily communicate with the child but that was not permitted by the paternal family.

3. I accept that the mother believed quite reasonably that the father and paternal grandparents loved the child and would provide very good care for her. Nevertheless her decision led to a period of four months where the child, aged 16 months when the mother left Australia, did not see her mother at all and when she did see her there was a new baby.

The Father

1. The father had not informed the mother about his history of episodic mental illness. I accept she was shocked when she learned about that history by reading the Single Expert Report and material produced by hospitals and doctors in response to subpoena for this trial.

2. I also accept that the analysis of risk provided by the Single Expert psychiatrist in his report, made the mother wary and fearful about the safety of the children in the care of the father.

3. The father is an intelligent man who loves his children. He has the capacity when his mental health is well managed to meet the emotional and intellectual needs of the children.

4. He must have contemplated that the mother would learn about his mental illness especially as he knew his use of drugs and alcohol aggravated his condition.

5. The father was in my view irresponsible in not informing the mother of his vulnerability in terms of his mental health before the parties became parents.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The mother was the victim of domestic violence during the relationship with the father. She provides specific instances in her affidavit of drunken aggression towards her by the father, yelling and abusive language. Sometimes she called on her father-in-law for assistance, sometimes she simply moved out of the home.

2. The father, without specificity, acknowledged that his use of drugs “impacted on my mental health and caused me to make bad decisions and to do things which were stupid and of which I am not proud”. Likewise, in acknowledging abuse of alcohol, “At times I have used it to manage stressful situations and my behaviour, when I have drunk too much alcohol, has impacted on other people, including my family. I am ashamed of my behaviours while intoxicated.”

3. The elder child as an infant was present on some occasions of abuse. There is no evidence of the impact on the child but it is not safe to assume that no harm was done. The younger child was born after separation.

4. The mother did not apply to police for any protective order.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. By the conclusion of the evidence, especially the expert evidence of three psychiatrists, the position of the father had changed. This may have been an acceptance by the father that therapeutic engagement with a treating psychiatrist would assist him and deliver a consequential benefit to the children. It may have been a pragmatic response based on legal advice.

2. Certainly the involvement of a monitoring psychiatrist provides reassurance for the mother that she will be told if the mental health of the father deteriorates or he ceases to be compliant with orders.

Any other fact or circumstance that the court thinks is relevant

Overseas travel

1. The mother wishes for provision to be made for her to travel with the children annually to Thailand for up to four weeks.

2. The father is opposed to such travel and seeks an order restraining each party from removing or allowing the removal of the children from Australia. He seeks an order for inclusion of the children on the Airport Watch List until 26 April 2024.

3. Thailand is not a participating country in the Hague Convention. In the event the children were not brought back to Australia by the mother, the father may have to institute proceedings in Thailand.

4. The issue of provision of security by the mother was not raised by any party. The mother is not in a financial position to provide a lump sum sufficient to cover travel by the father to Thailand and potential legal costs of pursuing the matter in the Thailand Courts. The father is in a strong financial position. In the Agreement he disclosed substantial assets[13] and an income both from the business he runs and distributions from family trust as more than $361,000.[14] He is in a position of being able to address a failure to return without security provided by the mother.

   [13] Exhibit 32, page 25 – First Schedule.

   [14] Exhibit 32, par 2.16.

5. The ICL took the position that a parent should not travel overseas with the children without the prior written consent of the other parent.

6. Given the position of the father it is unlikely that the mother would readily receive the consent of the father.

7. On the issue of security for the return of the children, the factors set out by the Full Court in the matter of Line & Line (1997) FLC 92-729 have been considered in evaluating the possible risk of the mother failing to return with the children to Australia from Thailand. The factors include:

   a)The existence of otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   b)The existence and strength of possible motive not to return (including the level of conflict between the parent, particularly over child related issues);

   c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interest, or the residence of close family and/or friends there); and

   d)Whether the country of travel is a signatory to the Hague Convention.

8. In considering those factors the wife has lived in Australia for seven years. She has established a home for herself, has made friends, has qualified to become an Australian citizen, has studied in Australia and plans to re-enter the paid workforce when the children are both at school. I conclude that the mother has strong ties to Australia and wishes the subject children to grow up in this country.

9. The mother did return to Thailand when the parties’ relationship was failing. She returned to address those issues and for the birth of the second child. The level of conflict is not as high as it has been, and parenting arrangements have been put in place by these orders. I conclude that it is unlikely that the mother would leave with the children and not return.

10. The mother does have her parents, one sister and friends in Thailand. I have found that there is a benefit to the children being connected to the maternal family and to their Thailand culture and language. The maternal family is well known to the father and he has stayed with them in the village where the mother grew up. It is not in the best interests of the children to wait until each has turned 18 to travel to Thailand. The opportunity to know and appreciate the mother’s country, their maternal grandparents and wider family is a matter which outweighs the low risk of non-return.

11. The orders sought by the mother were in broad terms, using the language of s 65Y of the Act, that is “the mother is permitted to take or send the children from the Commonwealth of Australia”.

12. In circumstances where Thailand is not a member country of the Hague Convention such an order is not at all appropriate.

13. The mother also proposes an order that she be permitted to obtain Australian passports for the children without the consent of the father.

14. Despite the fact that these orders provide for the mother to have sole parental responsibility there is no justification for the father to be bypassed in this way.

15. Both parties have travelled extensively. When it is possible for Australians to travel overseas without quarantine restrictions or risk to health the children will benefit from trips and holidays overseas, especially to Thailand. In later years the mother may consent to the children travelling overseas with the father and/or the paternal grandparents.

16. The children have maternal grandparents and extended maternal family in Thailand and Country FF. There is an extended maternal family gathering each October in the mother’s village. The mother wants the children to understand their Thailand culture and learn and use the Thailand language and it is in their best interests to do so.

17. An order is made for travel up to four weeks in each alternate year, balancing the benefits for the children of holiday time with the extended maternal family against unreasonable disruption of time for the children with the father if they travelled every year. Of course additional travel could be undertaken by consent.

18. Accordingly, orders are made for the mother to obtain Australian passports for the children and for the father to hold their passports if he so wishes until the mother and children travel and after their return.

1. There will also be orders for the mother to provide 12 weeks notice of proposed travel, for the father to deliver passports and for the mother to provide an itinerary, copies of return tickets and contact details prior to travel.

2. The longer period of notice enables the father to bring an application to a Court if he considers that there is a reasonable basis for opposing the travel. Thus the orders are designed to put the onus on the father to justify opposition to travel.

3. The current Airport Watch List order was due to expire in September 2021. A further order has been made which will expire in March 2022.

4. A condition of travel has been introduced that all current COVID-19 health and quarantine restrictions have been lifted.

5. Subject to that period of time and the stated condition of travel, the mother’s application to allow travel with the children to Thailand is permitted.

The Applications – (2) Financial Agreement

1. In this part of these reasons the applicant Ms Sandwell will be referred to as “the wife”, the respondent Mr Sandwell as “the husband” and the husband’s father as Mr G Sandwell.

The Wife

1. By her Minute of Order[15] the wife asks the Court for:

   1.A Declaration that the Financial Agreement executed 12 March 2015 is not binding on the parties, pursuant to s 90G of the Act.

   And in the alternative:

   2.That the Financial Agreement be set aside pursuant to s 90K(1)(b)(d) or (e) of the Act.

   [15] Exhibit 2.

The Husband

1. The husband asks the Court to dismiss the application of the wife on the basis that the Financial Agreement is binding on the parties, and further that there are no circumstances to justify the setting aside the Financial Agreement.

Is the Financial Agreement binding on the parties?

1. The contentious Agreement was made under s 90B of the Act. That section relates to an agreement made before marriage, by people contemplating entering into marriage.

2. The Agreement was signed by the wife on 2 March 2015 and by the husband on 12 March 2015.

3. The parties were married in early 2015.

4. The wife seeks a declaration that the Agreement is not binding on the parties pursuant to s 90G of the Act.

5. In the event that the Court finds the Agreement to be binding then the wife asks for it to be set aside.

6. Section 90G of the Act sets out the requirements for a financial agreement to be binding:

   (1) Subject to subsection (1A); a financial agreement is binding on the parties to the agreement, if and only if:

   (a)the agreement is signed by all parties; and

   (b)before signing the agreement each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

   (c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

   (ca)a copy of the statement referred to in paragraph(c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

   (d)the agreement has not been terminated and has not been set aside by a court.

   Note: For the manner in which the contents of a financial agreement may be proved see Section 48 of the Evidence Act 1995.

   (1A)A financial agreement is binding on the parties to the agreement if:

   (a) the agreement is signed by all parties; and

   (b) one or more of paragraphs 1(b),(c), and (ca) are not satisfied in relation to the agreement; and

   (c)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on spouse parties to the agreement ; (disregarding any changes in circumstances from the time the agreement was made); and

   (d)the court makes an order under subsection (1B)declaring that the agreement is binding on the parties to the agreement; and

   (e)the agreement has not been terminated and has not been set aside by a court.

   (1B)For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

   (1C)To avoid doubt, section 90KA applies in relation to the enforcement application.

   (2)A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.

Were the relevant provisions of the Act complied with such that the Agreement became binding on both parties?

History

1. On 12 January 2015 the parties announced their engagement to the husband’s parents, although they had become privately engaged in Country S in 2013 and had been living together since the wife returned to Australia in 2014.

2. Soon after the announcement, Mr G Sandwell suggested quite forcefully to the husband “I think you should get a pre-nup before you get married.” He described the husband’s reaction as “resistant to the idea initially”.

3. In February 2015 the mother states that the husband told her ‘when we get married you must understand that the business and all the property and other things I own will still belong to me. You will never own them. I feel a bit uncomfortable saying this to you, but my family has a business. Mum and Dad agree it is the right thing that you sign a paper, a financial agreement before we get married, otherwise we cannot get legally married’.[16]

   [16] Affidavit of Ms Sandwell filed 24/12/2019, par 129.

4. The husband agreed to most of the above, but denied stating that they would not get married unless she signed the Agreement.

5. By February 2015 the parties had decided to do what Mr G Sandwell wished.

6. Mr G Sandwell directed the husband to a firm of solicitors who prepared the Agreement.

7. He also arranged and paid for the wife to speak to a solicitor of her choice to get independent legal advice.

8. The wife asserted that the husband reassured her that despite having to sign the Agreement, she would always be his wife and he would always look after her[17] and that the Agreement could be changed after they had children.[18]

   [17] Affidavit of Ms Sandwell filed 24/12/2019, par 131.

   [18] Affidavit of Ms Sandwell filed 24/12/2019, par 135.

9. If made, the statements were optimistic expressions of hope about the longevity of the marriage. It was true to say that the Agreement could have been varied in future.

10. The wife decided before she got legal advice to sign the Agreement.[19]

    [19] Affidavit of Ms Sandwell filed 24/12/2019, par 138.

11. The wife conceded that she attended the office of the solicitor with the intention of signing the Agreement, “I did care (what the Agreement said) but not really”.

12. On 2 March 2015 the mother attended HH Lawyers for an appointment with Ms GG, a solicitor, where the mother signed the Agreement. The mother described the process as follows:[20]

    [20] Affidavit of Ms Sandwell filed 24/12/2019, pars 139–151.

    a)The solicitor informed her this was ‘the worst agreement she had seen’.

13. The solicitor did not recall using those words. If she did use those words or something similar it makes no material difference. The mother had formed the decision to sign the Agreement whatever it contained.

14. Objectively there appears to be little financial benefit to the wife in signing the agreement.

    b)There was no offer of an interpreter service.

15. I do not accept that was the case. The question of interpretation for the wife was included in the Agreement itself:[21]

    [2.10]The wife was invited to have this agreement, all attached schedules and documents and the independent advice from her legal practitioner as to the effect of the agreement on her rights and the advantages and disadvantages at the time the advice was provided to her of making the agreement to be explained and translated to her in both English and Thailand by a trained translator. The wife warrants that she does not need the services of a translator and that her understanding of the agreement and the advice from her independent solicitor as to the effect of the agreement on her rights and the advantages and disadvantages at the time the advice was provided is not affected by any lack of understanding of the English language and customs.

    [21] Exhibit 32, par 2.10.

16. That paragraph, and the paragraph before it setting out the mother’s qualifications and English language skills[22] was an alert both to the mother and to the solicitor that the mother was said to have understood that she could have had an interpreter but chose not to.

    [22] Exhibit 32, par 2.9.

17. I accept the evidence of Mr G Sandwell that he stated to the mother more than once prior to the signing of the Agreement that she could have an interpreter and should have one if she wished.

18. I accept his evidence largely on the basis that Mr G Sandwell was the prime mover for a Financial Agreement. He was committed to protecting the wealth generated by himself and his wife for themselves and their two adult children. He clearly appreciated the significance for validity of the document of the mother understanding the meaning of the document before she signed it.

    c)The solicitor did not inform her that:

    -she may be disadvantaged by signing the Agreement;

    -she had waived her rights for maintenance and the adjustment of property under the Act;

    -she could negotiate the terms of the Financial Agreement;

    -having a Financial Agreement was not a requirement under Australian law.

19. In my view the Agreement carefully reflected the individual circumstances of the parties. It was neither general nor generic.

20. The covenants[23] in clear language refer to the Agreement being in substitution for the rights of the parties under the Act and that once made binding the Agreement would oust the jurisdiction.

    [23] Exhibit 32, par 4.

21. The wife wanted a female solicitor. She felt comfortable with Ms GG. She attended the appointment alone and conceded she received advice. The attendance was for 90 minutes.

22. The contemporaneous note of the solicitor includes this passage “Discussed BFA clause by clause-Ms Sandwell’s understanding of English excellent both written and oral.”

23. There was no challenge to any of the formal requirements under the Act including the provision of a statement by the solicitor that independent legal advice had been given.

24. The wife now challenges the fact of relevant legal advice having been given. Accordingly, the onus shifts such that the wife must establish that the certificate of the solicitor was false.[24]

    [24]Hoult & Hoult (2013) FLC 93-546.

25. The solicitor has been a practitioner for 18 years, the last 13 years of that period in the Family Law jurisdiction.

26. The solicitor did not have an independent recollection of the wife but had reviewed the file. She was aware that the wife had had the Agreement to read in advance of the meeting. I accept her evidence that during the course of the time with the wife the solicitor followed her usual practice of reading through the Agreement clause by clause and advising in context.

27. The cross-examination did not establish that the solicitor had falsely given a statement about provision of legal advice.

28. On 12 March 2015 the husband signed the Agreement.

Conclusion

1. The Court finds that the Agreement is binding on the parties. The application of the wife for a declaration otherwise, is dismissed.

Should The Agreement Be Set Aside?

1. The next application of the wife is for the Court to set aside the Agreement under one of three nominated sub-sections of s 90K of the Act, being:

   (1)  A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:

   (b)the agreement is void, voidable or unenforceable; or

   (d)  since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

   (e)in respect of the making of a financial agreement - a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or

(b)    Is the agreement void, voidable or unenforceable?

(e)    Has a party engaged in unconscionable conduct?

1. The two grounds (b) and (e) can be considered together.

2. Misrepresentation, undue influence, mistake, duress and unconscionable conduct can all lead to an agreement being voidable. These words point to general common law and equitable principles of contract law. 

3. To succeed the wife must establish that she was at special disadvantage and the husband at unconscionable advantage due to the special disadvantage or at least in a position where he should have known of the special disadvantage.

4. On behalf of the wife it was submitted that the grounds to be taken into account  are as follows:

The circumstances of the wife in Australia where she was financially subordinate position to the father and relied on his family for support:

1. The wife was living with the husband in City O. She was working in the husband’s business and studying at university. Her husband and his parents were materially better off than the wife. They assisted her financially.

Where the husband was her sponsor for a partner visa, there were developed plans for a wedding:

1. It was not a situation of social or emotional pressure to marry or adverse consequences if they did not marry other than personal disappointment. There was no external pressure which had the effect of compelling the wife to sign the agreement nor was there was no other choice open to her.[25]

   [25] Thorne & Kennedy (2016) FLC 93-737.

2. The wife wished to marry as did the husband. They hoped to have children. They were living together independently as a couple and could have continued to do so, without consequence, in a de facto relationship.

3. They were looking forward to a wedding in Australia and a marriage celebration in Thailand soon after.

Where the wife’s understanding of written English was reasonable but still an issue:

1. By early 2015 the spoken English of the wife was fluent with some limitations. She was studying in English at tertiary level.

2. The wife chose not to fully read the Agreement document because she had decided to sign it. She did not choose to have an interpreter present with the solicitor nor to ask for more time to understand or negotiate change. I conclude that she was well aware that the option of using an interpreter was open to her

3. The wife’s level of understanding of the language did not constitute special disadvantage. She was not reliant on others to obtain information due to inability to understand or communicate or go about her ordinary life in Australia.

The other ground relied on is (d) a material change in circumstances relating to the care, welfare and development of a child of the marriage such that a party will suffer hardship if the Court does not set the Agreement aside:

1. The wife has provided most of the care for the younger child since her birth in 2017. The wife was also responsible for the elder child born in 2016 other than for the period from August 2017 to October 2018 when care was shared with the husband. Since that date both children have been in the primary care of the wife.

2. The wife has at all times wanted to care for both children, with the husband involved if it was safe for that to occur.

3. The wife has received financial support for the children and will very likely continue to do so.

4. If the Agreement is not set aside there is no evidence to suggest that the wife will suffer hardship.

5. After two and a half years of marriage with minimal financial contribution by the wife, any adjustment to the financial position of the wife would probably be a modest one if the Agreement was set aside, taking into account the cost of further litigation.

Conclusion

1. The grounds relied on do not satisfy the Court that the Agreement should be set aside. That application will be dismissed.

2. Orders are made accordingly.

I certify that the preceding two hundred and eighty four (284) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 March 2021.

Associate: 

Date:  25 March 2021