Selwood & Selwood (No 2)
[2024] FedCFamC1F 700
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Selwood & Selwood (No 2) [2024] FedCFamC1F 700
File number(s): SYC 4251 of 2021 Judgment of: HARPER J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – PARENTING – Where the parties entered into a final consent order for the mother to have sole parental responsibility for major long term issues – Where parties agreed the three children should continue to live with the mother – Where the mother seeks orders for the two older children aged 15 and 12 years to spend time with the father in accordance with their wishes and prescribed time for the youngest child aged 10 years – Where the father seeks prescribed time orders for all three children – Where the father seeks an increase in time including overnight time and block time during school holidays – Where there is a history of allegations of family violence and verbal abuse perpetrated by the father – Where the father has engaged in treatment with a psychiatrist and has shown insight into his past behaviours – Where the mother’s proposal that the two older children can spend as much time as they wish with the father inherently acknowledges any continuing risks are not unacceptable – Where there are no unacceptable risk factors to the safety of the children whilst in the father’s care – Where the children expressed resistance to overnight time with the father to the Family Report Writer in 2022 but have since been compliant with overnight time orders – Where one-on-one time with the father may be beneficial for the youngest child – Orders for increased time with the father including overnight time for all children for a prescribed period, thereafter the two older children to spend time with the father only in accordance with their wishes – Order for the youngest child to spend time with the father only in accordance with his wishes upon reaching the age of 13 years.
FAMILY LAW – PROPERTY – Adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Assessment of contributions – Where the mother sought 65/35 division with 10 per cent adjustment under s 79(4)(e) of the Act in her favour – Where the father sought 50/50 division with no further adjustment – Where the mother is the founder and sole director of a company in which the father has no proprietary interest – Where the mother has a practice of cycling director loans from the company into the spouse parties’ joint account to the benefit of both parties – Where the father sought addbacks in the amount of $559,043 for legal fees paid by the mother with director loans – Where the mother sought to include a liability of $2,436,144 for director loans – Where the mother’s liability has already been accounted for in the expert valuation of the company she claimed as an asset – Where the mother has made an uncertain sum of repayments for the loans and the Court cannot be satisfied the value of the company has been changed by any repayments – Where the liability recorded by the expert valuation cannot be taken as accurate but the expert evidence is the only secure valuation of the mother’s interest in the company and liabilities for director loans – Whether the mother’s liability for director loans should be included on the balance sheet or taken into account under s 79(4)(e) of the Act – Where a 3 per cent adjustment is made in favour of the father – Final division of 62/38 per cent in favour of the mother.
Legislation: Family Law Act 1975 (Cth) Pt VII and Pt VIII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAB, 75, 79, 80, 81
Family Law Amendment Act 2023 (Cth)
Income Tax Assessment Act1936 (Cth) Div 7A
Cases cited: Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69
Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Burke and Burke (1981) FLC 91-055
Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102
Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
G and G (2000) FLC 93-043; [2000] FamCA 1075
Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353
Kessey and Kessey (1994) FLC 92-495; (1994) 18 FamLR 149
Kowalski and Kowalski (1993) FLC 92-342
Mabb & Mabb and Anor (2020) FLC 93-947; [2020] FamCAFC 18
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Martin & Newton (2011) FLC 93-490; [2011] FamCAFC 233
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Norman & Norman [2010] FamCAFC 66
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
Papas v Co [2018] NSWSC 1404
Phillips and Phillips (2002) FLC 93-104; [2002] FamCA 350
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
The Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57
Waye & Waye [2023] FedCFamC1F 962
Wei & Xia (No. 5) (2023) 67 Fam LR 421; [2023] FedCFamC1F 679
Ying v Song [2010] NSWSC 1500
Zao & Lee [2019] FamCAFC 169
Division: Division 1 First Instance Number of paragraphs: 299 Date of hearing: 19–20, 23–25 September 2024 Place: Sydney Counsel for the Applicant: Ms Beck Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators Counsel for the Respondent: Mr Ahmad Solicitor for the Respondent: Edwards Moloney Family Law Counsel for the Independent Children's Lawyer: Ms Evelyn Solicitor for the Independent Children's Lawyer: Mason Mia & Associates ORDERS
SYC 4251 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SELWOOD
Applicant
AND: MR SELWOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT NOTES THAT:
Definitions
A.For the purposes of these Orders the following definitions apply:
(a)“Act” means the Family Law Act 1975 (Cth).
(b)“children” means:
(i)X (born 2009);
(ii)Y (born 2012); and
(iii)Z (born 2014).
(c)“father” means the respondent Mr Selwood born 1983.
(d)“mother” means the applicant Ms Selwood born 1978.
(e)“Motor Vehicle 1 finance” means B Bank Car Loan #...01.
(f)“Suburb D property” means the property situated at and known as C Street, Suburb D, in the state of New South Wales and part of folio identifier … registered in the joint names of the parties.
(g)“Suburb D Mortgage” means mortgage to National Australia Bank …48.
(h)“parties” means the mother and the father.
(i)“Settlement Date” means the date 60 days from the date of these orders.
THE COURT ORDERS THAT:
PARENTING
Live with and spend time with arrangements
1.The children live with the mother.
During school term
2.That following the date of these Orders until the commencement of Term 3, 2025 the children spend time with the father as follows:
Week 1
2.1On Friday from the conclusion of school (or 3.00 pm) until the commencement of school (or 9.00 am) Monday in Week 2.
Week 2
2.2On Thursday from the conclusion of school (or 3.00 pm) until 6.00 pm.
3.Following the date of these Orders until the commencement of Term 3, 2025 X and Y may spend additional time with the father in accordance with their wishes.
4.That from the commencement of Term 3, 2025 X and Y spend time with the father during school terms and school holidays only in accordance with their wishes.
5.That from the commencement of Term 3, 2025 Z spend time with the father as follows:
Week 1
5.1On Friday from the conclusion of school (or 3.00 pm) until the commencement of school (or 9.00 am) Monday in Week 2.
Week 2
5.2On Thursday from the conclusion of school (or 3.00 pm) until 6.00 pm.
6.That upon Z reaching the age of 13 years, he spend time with the father during school terms and school holidays only in accordance with his wishes.
School holidays
7.That during school holiday periods until the commencement of Term 3, 2025, the children spend time with the father as agreed between the parents and failing agreement, then:
7.1During the Term 4, 2024 school holiday period for three (3) periods of four (4) nights as follows:
7.1.1From 10.00 am on the first Saturday of the school holiday period and concluding at 6.00 pm the following Wednesday;
7.1.2From 6.00 pm on 1 January until 6.00 pm on 5 January;
7.1.3From 6.00 pm on 20 January until 6.00 pm on 24 January.
7.2For Term 1 and Term 2, 2025 school holiday periods from the conclusion of school on the last day of term to 3.00 pm on the 5th day of the school holiday period (5 nights).
8.From the conclusion of Order 7 until Z reaches 13 years of age:
8.1During the school holiday period that immediately follows Terms 1, 2 and 3, for five (5) nights in each school holiday period commencing at 10.00 am on the first Saturday of the school holiday period and concluding at 6.00 pm the following Thursday.
8.2During the Term 4 school holiday period for three (3) periods of five (5) nights as follows:
8.2.1From 10.00 am on the first Saturday of the school holiday period and concluding at 6.00 pm the following Thursday;
8.2.2From 6.00 pm on 1 January until 6.00 pm on 6 January;
8.2.3From 6.00 pm on 20 January until 6.00 pm on 25 January.
8.2.4Such other times as agreed between the parties or as expressed by Z.
9.The children’s time with the father during school term periods will recommence on the first Thursday of each school term.
10.That for the purpose of Orders 7 to 9 above, the school holiday period shall be in accordance with the published school holiday period of E School.
Special Occasions
11.On special occasions with each party as agreed between the parties, but failing agreement then time in accordance with orders be suspended and the children spend time with each parent as follows:
11.1On the children’s birthdays as follows:
11.1.1If the child’s birthday falls on a school day, with the parent with whom the child is not residing from the conclusion of school until 6.00 pm, and
11.1.2If the child’s birthday falls on a non-school day, with the parent with whom the child is not residing from 9.00 am to 2.00 pm.
11.2With the father on the father's birthday as follows:
11.2.1If the father's birthday falls on a school day, from the conclusion of school until 6.00 pm, and
11.2.2If the father's birthday falls on a non-school day, from 9.00 am to 2.00 pm.
11.3With the mother on the mother’s birthday as follows:
11.3.1If the mother’s birthday falls on a school day, from the conclusion of school until 6.00 pm, and
11.3.2If the mother’s birthday falls on a non-school day, from 9.00 am to 2.00 pm.
11.4During the Easter period as follows:
11.4.1In even numbered years, with the father from 9.00 am Good Friday until 12 noon Easter Sunday and with the mother from 12 noon Easter Sunday until 9.00 am on the Tuesday following Easter Monday; and
11.4.2In odd numbered years, with the mother from 9.00 am Good Friday until 12 noon Easter Sunday and with the father from 12 noon Easter Sunday until 9.00 am on the Tuesday following Easter Monday.
11.5For Christmas 2024 and in alternate years thereafter:
11.5.1With the father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day; and
11.5.2With the mother from 2:00 pm Christmas Day until 5:00 pm Boxing Day.
12.Order 11 applies:
12.1To X and Y until the commencement of Term 3, 2025; and
12.2 To Z until he reaches 13 years of age.
Changeover, driving and extracurricular activities
13.For the purposes of facilitating these Orders, where changeover does not occur upon the conclusion or commencement of school, changeover is to occur at the home of the parent whose time with the children is commencing.
14.Each party shall ensure, whenever any child is in their care, that the child is transported to any sporting or extracurricular activities in which the child is participating from time to time and which occur at times, together with any training or other tuition relating to that activity.
Mutual non-denigration
15.Each party is restrained from denigrating the other parent or any of the children in the presence or hearing of the children or permitting the child/ren to remain in the presence or hearing of any other person whilst they are denigrating the other parent if that party is present at the time of the denigration.
Communication and consultation
16.Both parties do all acts and things to continue to subscribe to the application known as “Our Family Wizard” and each pay their own costs for the application and conduct all communication regarding all matters relevant to the child using this application unless otherwise provided in these Orders or otherwise agreed between the parties.
17.Each party be permitted to communicate with the children by telephone or Facetime when the child is in the other’s care between the hours of 6.30 pm and 7.00 pm, with the call to be initiated by the parent seeking contact and to be facilitated by the parent with whom the child is living/spending time.
18.Both parents advise and keep the other advised of their respective residential address, landline, mobile telephone numbers, email address, Skype address and any changes thereto at all times and within 24 hours of the same occurring.
19.In the event that either parent moves from where they live, that parent will notify the other two (2) weeks prior to such move of any change of address and within 24 hours of change of telephone numbers where that parent can be reached.
20.Each parent inform and keep the other informed at all times of the children's health and/or health related issues, and in the event that the children are required to undertake a medical procedure, each parent must consult with the other as soon as is practicable.
21.Each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the children.
22.Each parent be at liberty to attend and obtain a copy of any report prepared by any such specialist medical consultant or relevant health professional within 48 hours of receipt of same and otherwise in a timely manner.
23.In the event that the children or any of them is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the children or any of them attends.
24.Each parent:
24.1Is at liberty to contact the children’s schools to obtain copies of any information relating to the children including, but not limited to, school reports, school circulars, school notices, school invitations, school correspondence, school photographs and other documents concerning the education and the school activities of the children, and any other information in relation to the children’s academic progress and any involvement they may have with the school counsellor;
24.2Is at liberty to attend all school functions (including parent-teacher interviews), all sporting events and any other extracurricular activities that the children participate in which parents are usually permitted to attend, regardless of whom the children are spending time with when those events occur;
24.3Is to provide the other party with an address and a telephone number of the place(s) where the children will be staying during periods of holiday during periods the children are living with them.
25.Neither party will unreasonably prevent the children from having electronic communication with the other parent and each parent will facilitate the children’s communication with the other parent at all times in accordance with these Orders.
Travel/Passports
26.That the parties shall each do all acts and things, sign all such documents as may be necessary, attend all Government offices, provide all such necessary documents and pay, equally, all such necessary fees as may be required by the Australian Passport Office within 14 days of being requested to do so either by the father, the mother or an authorised government officer for the purpose of renewing and/or applying for passports for the children.
27.That in the event that the children’s passports or either of them are lost, damaged or stolen, the party who was in possession of the passport/s at the time that it was/they were lost, damaged or stolen shall be solely responsible for the cost of replacing the passport/s, and he/she shall do all acts and things and sign all documents necessary to replace the said passport/s within 14 days of discovering that they were lost, damaged or stolen.
28.That subject to any government restrictions to the contrary, the parties are hereby permitted to take the children out of Australia for holidays, such that the children are outside of Australia for no more than 3 weeks, and in relation to such Travel (“the Travel”):
(a)The party intending to Travel with the children (“the Travelling Party”) shall give the other party (“the Non-Travelling Party”) as much notification as possible of his or her intention, and in any event will give not less than 1 months’ written notice of such intention;
(b)The Travelling Party shall furnish to the Non-Travelling Party not less than thirty (30) days prior to the proposed departure an accurate itinerary to include the following:
(i)A copy of the Travelling Party’s and the children’s airline tickets (if available);
(ii)The departure date and return date;
(iii)The country or countries the Travelling Party and the children will be travelling to;
(iv)The approximate dates on which the Travelling Party and the children will arrive and depart each country; and
(v)A telephone number and address at which the Travelling Party and the children can be contacted in each country.
29.That the mother shall retain the children’s passports at all times that the children are not travelling with the father and for the purposes of this Order the mother shall provide the children’s passports to the father no less than fourteen (14) days prior to the proposed departure and the father shall return the children’s passports to the mother within seven (7) days of the return date.
Explanation of Orders
30.Within seven days of the making of these orders the parties do all things necessary to arrange for the children to attend upon the Independent Children’s Lawyer, at a time and place nominated by the Independent Children’s Lawyer, for the purposes of the Independent Children’s Lawyer explaining the effect and intent of these orders to the children.
PROPERTY
31.On or before the Settlement Date:
31.1The father shall do all acts and sign all documents as are necessary to transfer to the mother all his right, interest and title in the Suburb D property.
31.2Simultaneously with the transfer of the Suburb D property in the above order the mother shall:
31.2.1Discharge or refinance to her sole name the Suburb D mortgage and the Motor Vehicle 1 finance; and release the father from liability and thereafter indemnify him and keep him indemnified in relation to the same;
31.2.2Pay the father the sum of $1,778,588.
32.For the purpose of compliance with Order 31 by the Settlement Date, the following shall apply:
32.1The father and mother will sign an authority and any other document required by the mortgagee to release and discharge the Suburb D mortgage;
32.2Pending the transfer of the Suburb D property:
32.1.1The mother shall have the sole right to occupy the property and during such right of occupation the mother shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date.
32.1.2The father shall not be permitted to draw down the loan account related to the Suburb D mortgage.
32.1.3The parties hold their respective interest in the Suburb D property upon trust pursuant to these Orders.
32.1.4Neither party shall encumber the Suburb D property without the consent in writing of the other party or any mortgagee.
33.In the event that the mother does not comply with Order 31.2 through no default by the father in meeting his obligations in Order 31.1 then within 21 days of the Settlement Date the parties shall do all acts and things necessary to list the Suburb D property for sale and effect the sale of the Suburb D property in accordance with Order 34.
34.Except as otherwise agreed by the parties in writing:
34.1The parties must sign all selling authorities as may be necessary to cause the Suburb D property to be sold by way of public auction through a licensed real estate agent appointed by the parties and failing agreement between the parties, to be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee upon the written request of either party (“the Agent”).
34.2The parties must sell the property for the amount and on any conditions of sale to be determined jointly by parties in writing in consultation with the Agent and any solicitor/conveyancer acting on the sale.
34.3The parties must appoint the solicitor/conveyancer to act on the sale of the Suburb D property on behalf of both parties as agreed and failing agreement such solicitor/conveyancer as may be determined by the President of the Law Society of New South Wales in which the property is located or his or her nominee upon the written request of either party and the costs of that appointment are to be borne solely by the mother as and when they fall due.
34.4The parties must co-operate with respect to the sale of the Suburb D property including but not limited to:
34.4.1Making the key available to the agent;
34.4.2Allowing access to the property at all reasonable times to prospective purchasers, valuers and licensed real estate agents as may have been appointed by the parties;
34.4.3Doing or saying nothing to hinder or prevent a sale being effected;
34.4.4Signing all documents in relation to the sale approved by the agent and/or solicitor acting on the sale as the case may be; and
34.4.5The mother must maintain the property in reasonable condition and repair having regard to its present condition and the state thereof, pending completion of the sale of the property.
34.5The Agent is to nominate the date of sale which will be not more than 2 months after the Agent has been appointed.
34.6If the reserve price of the Suburb D property is not reached, the parties may negotiate on with the highest bidder or any other bidder present at the auction or any other interested party in an effort to sell the property at a price not more than 5 per cent below the reserve price for the respective property or otherwise for a price determined as agreed between the parties in writing in consultation with the Agent.
34.7If a Contract for Sale for the property is not exchanged at a price of not more than 5 per cent below the reserve price within 14 days of the auction taking place then the parties must forthwith re-list the property for sale by private treaty with the Agent and the Agent will, sell the property at the highest price offered in writing and received by the Agent within a period of 60 days from the date of the auction, provided that the price is not more than 10 per cent below the reserve price.
34.8If the highest price offered is more than 10 per cent below the reserve price, the property will be forthwith listed for sale by way of public auction with the Agent and the Agent will determine the auction date and the property must be sold to the highest bidder at that auction, and either party will be at liberty to bid at the auction and that there will be no reserve price.
34.9The mother must pay the auction expenses as and when they fall due. If the mother fails to do so, the auction expenses must be deducted from the mother’s share of the sale proceeds of the property.
35.That on settlement of the sale of the Suburb D property in accordance with Orders 33 and 34, the proceeds of sale are to be applied in the following order and priority:
35.1In full payment of the Suburb D mortgage, Motor Vehicle 1 finance and any outstanding council rates and water rates;
35.2In full payment of any outstanding costs of the sale including agent’s commission and legal costs on the sale;
35.3Payment to the father of $1,778,588.
36.Unless otherwise referred to in these Orders each party shall be solely liable for any debts due in their sole name and each party shall be entitled to retain any other assets or financial resources held in their possession or in their name as at the date of these Orders.
37.Each party shall sign any such documents that may be required to give effect to the terms of these Orders within 7 days of a written request so to do, in default of a party signing any document that is requested by the other party then the Registrar of the Federal Circuit and Family Court of Australia at Sydney is appointed pursuant to s 106A of the Act to sign any such document on behalf of the defaulting party.
38.Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these Orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Selwood & Selwood have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are proceedings between the applicant mother, Ms Selwood (“the mother”) and the respondent father, Mr Selwood (“the father”) under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) concerning both parenting and property issues.
The parenting issues relate to the children of the relationship:
(a)X born 2009 (age 15 years) (“X”);
(b)Y born 2012 (age 12 years) (“Y”); and
(c)Z born 2014 (age 10 years) (“Z”).
(Referred to collectively as “the children”)
BACKGROUND
The mother was born in 1978 and is 45 years old. She works on a full-time basis as principal of her business which is conducted through F Pty Ltd. As at the date of trial, she receives a gross salary of approximately $350,000 per annum.
The father was born in 1983 and is 41 years old. He currently works on a full-time basis as an executive in the public service. As at the date of trial, he receives an income of approximately $390,000 per annum inclusive of superannuation.
The parties commenced their relationship in 2006 and began cohabitation at the time they married in 2008 though they disagree on the precise date this occurred. The mother asserts the parties divorced in October 2022. The father asserts the parties divorced in November 2022. Nothing turns on this difference.
The date of separation was contentious. The mother asserts that the parties separated on a final basis in December 2017. The father asserts that they separated on a final basis in February 2020. It is the mother’s case that throughout the period between December 2017 and February 2020, the parties lived separately under the same roof at the former matrimonial home at C Street, Suburb D (“Suburb D”). There was no dispute that the parties slept in separate bedrooms from December 2017 until February 2020 when the father left Suburb D.
The mother made a case that the father relied upon the later date of separation for strategic reasons, in the mistaken belief the later date could somehow improve his position in seeking a larger property division in his favour. I do not accept the father proposed the date for some strategic reason. There was clear evidence, which was canvassed in cross examination, which showed that between December 2017 until February 2020 the father continued to make expressions of love and affection towards the mother, even if she did not obviously reciprocate, the mother sought the father’s advice and assistance in various ways, and the parties socialised together as a couple on occasion. While I accept that during this period the parties were estranged and any residual affection between them slowly dissipated, they continued to live under one roof, and the question of contributions is not materially affected in this case by the date of separation.
At the time of marriage, the father was employed as a Senior Consultant earning a salary of $72,000 which had increased to $172,000 by 2013. Between 2014 to 2016 the father was employed as an Adviser and received a salary of $230,000 and then in a senior position at a financial advisory firm earning $202,000. Between 2016 and 2021 he worked as an Adviser for a salary of $230,000 and as an Associate Partner for a salary of $276,500 plus bonuses.
In 2002 the mother purchased a property at G Street, Suburb H QLD (“Suburb H”) for around $150,000. The purchase was funded with a $127,600 mortgage from National Australia Bank (“NAB”) and her personal savings.
In 2004 the mother founded F Pty Ltd. Prior to the marriage the mother also had a NAB account #...32. Following accounting advice, she began a practice of causing F Pty Ltd to make director’s loans to her during a financial year, which fell within Div 7A of the Income Tax Assessment Act1936 (Cth) and which she then repaid prior to the end of the financial year. The funds borrowed in this way by the mother were deposited into NAB account #...32. After marriage this account became a joint account into which both parties made deposits, as will be explained in more detail later, to meet a range of family expenses.
In 2006 the mother purchased a property at J Street, Suburb K QLD (“Suburb K”) for over $250,000. The purchase was funded with a $385,000 mortgage from NAB consolidated with the Suburb H mortgage.
In 2008 the parties moved into a rental property at 1 L Street, Suburb M.
In 2008 the parties purchased a property at N Street, Suburb O QLD (“Suburb O”) for around $380,000. The purchase was funded using $50,000 received at the spouse parties’ wedding, a $315,000 mortgage from NAB, and $20,000 of the mother’s personal savings. The mother states her Suburb K and Suburb H properties were used as security to purchase Suburb O.
In 2009 the parties purchased and moved into a property at 2 L Street, Suburb M (“Suburb M”) for around $800,000 as joint tenants. A 20 per cent deposit was paid. The mother contended the deposit was comprised of $120,000 from her personal savings and $30,000 of joint savings. The father denies the mother contributed more and asserts the deposit was paid entirely from the joint account with both parties providing an equal contribution. As will be described later, I am satisfied the mother made a greater contribution to account #...32 during the relationship and after separation. But there was no basis in the evidence to determine what proportion of funds in the joint account, and which eventually found their way into the deposit, came from which party. I infer the deposit for Suburb M was an equal contribution. However, the parties also took out three mortgages with NAB for $196,000, $192,000 and $725,000 as they refinanced the mortgages secured against Suburb O, and the mother refinanced the mortgages secured against Suburb H and Suburb K. The mother states her parents also provided a guarantee of $58,000 over a property the parents owned in Suburb K.
In 2009 X was born.
In 2011 the parties sold Suburb O for around $350,000 and at a loss of $38,000.
In 2012 Y was born. The father took several months of paternity leave when Y reached six months of age.
In 2012 the parties sold Suburb M for $900,000 and received net proceeds of $264,000.
In 2012 the parties purchased the matrimonial home Suburb D for over $1,200,000 as joint tenants. The purchase was funded using the net proceeds of $264,000 from the Suburb M property sale, a mortgage with NAB for $1,130,000 and the equity in Suburb K and Suburb H as additional security. Upon settlement the parties moved into Suburb D.
Although the evidence was confusing, it appears that at some point after the purchase of Suburb D account #...32 also became an offset account, to reduce the interest payments required to service the mortgage secured against Suburb D. In her oral evidence the mother stated the monthly payments to service this mortgage have been debited to account #...32. During the relationship and up to the date of trial, the mother continued to receive director’s loans from F Pty Ltd which were paid into #...32. She also deposited her salary into this account and the father made deposits of between $4,000 and $14,000 each month up to September 2020.
In 2013, the father took 3 months of parenting leave.
In 2014 Z was born.
In 2015 the mother sold Suburb H for around $320,000 and received net proceeds of $110,000. The mother states the entirety of the proceeds were applied to construction of a pool at Suburb D and these proceeds covered the majority of the cost of construction. The father disagreed and claimed only some of the proceeds from the Suburb H sale were applied to the construction and funds were otherwise provided by joint savings and a line of credit on the Suburb D mortgage. The mother denied ever entering into a line of credit and the father did not give any detail, or adduce any supporting documents, to support the existence of a line of credit. I prefer the mother’s evidence in this regard and find the net proceeds of Suburb H were applied to the construction of the swimming pool.
In 2017 the mother sold Suburb K for $290,000. She states she did not make a profit after adjusting for sale costs and stamp duty.
In early 2019 the mother purchased a property at P Street, Suburb Q (“Suburb Q”) for over $1,700,000. She claimed the purchase was funded using a director’s loan from F Pty Ltd in the sum of $457,895.09 and a mortgage with NAB for $1,376,000. The father agreed the mother withdrew $427,000 from the joint account to assist in the purchase of Suburb Q. I return to this purchase below.
In late 2019 the mother purchased a property at 2 R Street, Town S (“2 R Street”) for around $530,000. The mother states the purchase was funded using a director’s loan from F Pty Ltd in the sum of $110,172.97 and a mortgage with NAB for $424,800. The father claimed the mother withdrew $94,500 from the joint account to assist in the purchase, the mother denies this.
In February 2020 the father left the matrimonial home and moved into rental accommodation at Suburb T.
In early 2021 the father leased a two-bedroom apartment at U Street, Suburb V NSW (“Suburb V”).
In mid-2021 the father was made redundant and received a gross redundancy payment and performance bonus totalling $103,397. These funds were paid into the father’s personal account #...34 and he asserted a portion was used to pay off his credit cards which were used for joint expenses. The father was unemployed until late 2021 when he secured new employment as a Program Director earning a daily rate of $1,700.
Around late 2021 the mother purchased a property at W Street, Suburb AA (“Suburb AA”) for $1,200,000. The purchase was funded by a mortgage with NAB for $1,250,000 (inclusive of stamp duty). The property was used as commercial premises for F Pty Ltd.
In mid-2022 the mother purchased a property at 1 R Street, Town S (“1 R Street”) for over $1,000,000. The purchase was funded by a mortgage with NAB for $1,070,000 with the excess amount applied to stamp duty.
In mid-2022 the mother purchased a property at BB Street, Suburb CC (“Suburb CC”) for over $6,400,000. The purchase was funded by a mortgage with NAB for $6,800,000 with the additional funds borrowed for stamp duty.
In late 2022 the mother sold the Suburb AA property for over $1,150,000 as it was no longer required for F Pty Ltd and she could not meet the mortgage repayments. There was a shortfall between the sale price and the mortgage debt. The mother paid the shortfall of $185,000 from her post-separation income.
For a period in early 2024 the father worked as a sole trader carrying out consulting work on infrastructure projects. In early 2024 the father commenced his current employment in the public service.
PROCEDURAL HISTORY
Some procedural history is relevant.
The mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 8 June 2021 seeking financial orders only. The father filed his responsive material on 23 September 2021 seeking interim and final orders in respect of both parenting and property matters.
On 27 October 2021 orders were made appointing Dr DD as Single Expert to prepare a Family Report (“the Family Report”).
On 26 November 2021, prior to a listed interim hearing on 1 December 2021 the mother updated her proposed orders to seek the father’s time with the children be supervised.
On 8 December 2021 a Senior Judicial Registrar of this Court made orders providing for the father to spend time with the children two times per week to be supervised by nominated family members of the father.
The parties and the children were interviewed and assessed by Dr DD on 31 May 2022. His Family Report was finalised on 22 September 2022 and subsequently released to the parties on 27 September 2022.
On 30 September 2022 the parties attended a Court Ordered Mediation Program facilitated by Legal Aid pursuant to orders of a Judicial Registrar of this Court. The parties did not resolve any interim or final parenting issues except that the father agreed for the mother to take the children overseas during school holidays and the mother agreed to extend the number of supervisors in circumstances where the father has nine siblings.
On 25 October 2022 the father filed an Application in a Proceeding seeking interim parenting orders.
On 21 November 2022 the mother filed responsive material seeking interim parenting orders that provided for a gradual increase in time spent by the children with the father. The mother then changed her position and instead sought the father’s application be dismissed in her Case Outline filed on 28 November 2022.
On 28 November 2022 the parties attended private mediation in respect of property matters only. Both parties made written offers but no agreement was reached.
On 11 January 2023 a Senior Judicial Registrar of this Court made orders that amended Order 4 and Order 5 of the orders dated 8 December 2021 in respect of school holiday time, otherwise the orders of 8 December 2021 remained in full force and effect and the father’s Application in a Proceeding filed 25 October 2022 was dismissed.
On 24 March 2023 upon Review the orders dated 11 January 2023 were discharged and interim parenting orders were made that provided for supervised and progressively unsupervised time with the father.
On 13 September 2023 the parties attended a case management hearing and a court-based dispute resolution conference in respect to property matters only. The parties did not resolve any property issues.
On 2 November 2023 the parties attended a case management hearing and entered into consent orders with respect to the time the father spends with the children during school holidays.
On 27 May 2024 the parties attended a case management hearing and the matter was listed for trial commencing on 19 September 2024 with an estimate of five days.
On 12 June 2024 interim consent orders were made in respect to the time the father spends with the children during Term 2 and Term 3 2024 school holidays.
On 5 August 2024 the mother filed an Amended Initiating Application in respect of both parenting and property matters.
On 6 August 2024 the father’s lawyers proposed to the mother that supervision cease as she no longer proposed supervision on a final basis and that the interim orders made on 24 March 2023 be amended. On 23 August 2024 the mother agreed to cease supervision on a trial basis but did not agree to formally vary the interim orders.
On 26 August 2024 the father filed an Amended Response to Initiating Application seeking orders for prescribed time with the children and a property division of 45/55 in favour of the mother. In his Case Outline filed 13 September 2024, the father sought an additional 5 per cent property adjustment in his favour for a 50/50 property division.
On 13 September 2024 the mother filed a Further Amended Initiating Application in respect of both parenting and property matters. She sought orders inter alia that the property asset pool be split 75/25 in her favour, and that wishes orders be made for the two older children and prescribed time orders with the father for the youngest child only.
The final hearing commenced on 19 September 2024 and ran for five days with judgment reserved on 25 September 2024.
CURRENT CIRCUMSTANCES
X is currently in year 9 at E School. Y is currently in year 7 also at E School. Z is currently in year 4 at a different school in Suburb V, but according to the mother’s evidence, will commence attending E School in 2025.
The mother lives with the children in Suburb D. The mother works full-time and uses part of Suburb D as a home office.
The father continues to rent a two-bedroom apartment in Suburb V which is a short drive from Suburb D. He lives alone and works full-time. When the children have stayed overnight they sleep in the two bedrooms and the father sleeps on the sofa in the living room.
As of 23 August 2024 the children spend unsupervised time with the father during school terms as follows:
(a)Each alternate weekend from after school Friday until 3.30 pm Saturday;
(b)Each alternate week on a Thursday from after school or 3.00 pm until 6.00 pm;
(c)The time spent is conditional on the father continuing to engage with his treating psychiatrist Dr EE and following all reasonable recommendations.
During the Term 3, 2024 school holiday period the children spend three consecutive nights with the father.
PROPOSALS AND ISSUES IN DISPUTE
I summarise the competing proposals in the following paragraphs. The mother’s proposed orders, contained in her Further Amended Initiating Application filed on 13 September 2024, are set out in Annexure “A” at the conclusion of these reasons. The father’s proposed orders, as contained in Exhibit G, are set out in Annexure “B”. The Independent Children’s Lawyer’s (“ICL”) proposed parenting orders, as contained in Exhibit F, are set out in Annexure “C”.
Parenting
The parties agreed that the children should continue to live with the mother.
The question of parental responsibility was initially contentious, but was ultimately dealt with by consent, so it can be conveniently discussed here. Parental responsibility for children is vested equally in their parents (s 61C(1) of the Act), regardless of whether they live together or are separated (s 61C(2)), unless a court order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). When a court order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long‑term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
The mother sought sole parental responsibility in relation to the day-to-day care, welfare and development of the children and all major decisions affecting the children including medical, schooling, the issue of passports and all other major decisions. The father initially sought an order for shared parental responsibility with the exception that each of the parties have sole parental responsibility for making decisions in relation to the day-to-day care, welfare and development of the children when the children are in their respective care.
During the trial the father altered his proposal and agreed to sole parental responsibility being allocated to the mother in relation to major long term issues other than changes of name and living arrangements which made it significantly more difficult for him to spend time with the children. The mother and the ICL agreed with this proposal. Orders to this effect were made by consent.
In other respects falling outside the consent orders for parental responsibility, therefore, both parents retain the duties, powers, responsibilities and authority conferred by law upon them as parents (s 61B). It will be necessary to keep this in mind in making parenting orders in the best interests of the children.
As the trial evolved, the central area of debate became the appropriate regime of orders for the children to spend time with the father. The mother proposed that X and Y spend time with the father in accordance with their wishes.
For Z, she proposes a regime which reflects in substance the status quo, as follows. From the conclusion of Term 1, 2026 he spend time with the father in accordance with his wishes. Z turns 13 in 2027. At the conclusion of Term 1, 2026 he will be 12 years. Until the conclusion of Term 1, 2026, the mother proposes that Z spend time with the father during school terms on a two week cycle, from after school or 3.00 pm on Friday until 3.30 pm on Saturday in week one, and from after school or 3.00 pm until 6.00 pm on Thursdays in week two. In the school holidays for 2025 and 2026 she proposes he spend a block of three nights in the father’s care in the April, June/July and September/October holiday periods and in the Christmas holidays, three blocks of three nights.
The father’s ultimate parenting proposal was for all the children to spend time with him in a two week cycle, in two periods the first of which would continue for six weeks from the date of the orders as follows:
(a)In the first six week period he proposes the children all spend time with him in week 1 from the conclusion of school or 3.00 pm on Friday until 6.30 pm on Sunday and in week 2 on Thursday from the conclusion of school (or 3.00 pm) until 6.30 pm for X and Y and until the commencement of school (or 9.00 am) on Friday for Z.
(b)Thereafter he proposes the children all spend time with him in week 1 from the conclusion of school (or 3.00 pm) on Friday until the commencement of school (or 9.00 am) on Monday in week 2, and in week 2 on Thursday from the conclusion of school (or 3.00 pm) until 6.30 pm for X and Y and until the commencement of school (or 9.00 am) on Friday for Z.
(c)He then proposes that upon X attaining the age of 16 years (in 2025) he spend time with the father during school terms and school holidays in accordance with his wishes, and the same order apply to Y and Z when they attain the age of 15 years and 6 months.
(d)He also proposes that there be orders for the children to spend block time with him over the school holidays and time on special occasions.
The ICL agreed that X and Y should spend time with the father in accordance with their wishes, as the mother proposes. She also proposed that there be orders for Z to spend time with the father on an increasing basis until he reaches the age of 13 years, that is, in 2027, when he should begin spending time with the father in accordance with his wishes.
The graduating increase proposed by the ICL was broken into three periods. The first period would be six months from the date of the Court’s orders, during which Z would spend time with the father on a two week cycle, from after school or 3.00 pm on Friday until 3.30 pm on Saturday in week 1, then on Thursday from after school or 3:00 pm until 6:00 pm in week 2, with a block of three nights in school holidays. After six months until the conclusion of Term 1, 2026, the overnight time would increase to include Saturday night until 6.00 pm on Sunday in week 1, with the same Thursday night in week 2, and an increase to four nights in school holidays for Terms 1, 2 and 3, and three blocks of four nights in Term 4 holidays. Then from the conclusion of Term 1, 2026 until Z turns 13 (in 2027) the term time two week cycle would remain the same, but school holiday time would increase to five nights in school holidays for Terms 1, 2 and 3 and three blocks of five nights in Term 4 holidays.
Property
The mother seeks an outcome whereby she retains Suburb D, and a number of properties owned by her, with a cash adjustment to the father representing 25 per cent of the matrimonial pool including superannuation. The father broadly agrees with the structure of this outcome, but contends the cash adjustment payable to him should represent 50 per cent of the matrimonial pool.
ISSUES FOR DETERMINATION
Taking into consideration the proposals and issues raised by each of the parties, this leaves for determination the following:
(a)Whether the older two children, X and Y, should spend school term time with the father only in accordance with their wishes, or pursuant to Court orders stipulating time, and if so, whether such time should remain at one night each fortnight or increase to three nights each fortnight, together with a Thursday night.
(b)Whether the school term time to be spent by the youngest child, Z, should be increased from one to three nights each fortnight, and each Thursday.
(c)Regarding school holidays:
(i)if orders are made stipulating time with the father for the older children, whether these should include block time in school holidays with the father up to six nights;
(ii)whether the youngest child should spend block time of either three nights or up to six nights in school holidays with the father.
(d)Whether contributions should be assessed 65 per cent in favour of the mother with a 10 per cent adjustment in her favour for s 79(4)(e) considerations, leading to a division of the parties’ assets 75 per cent in her favour, or 53 per cent to the mother with an adjustment of 3 per cent under s 79(4)(e) in favour of the father, as he proposes, leading to an equal division of the parties’ assets by a cash payment to him.
MATERIAL RELIED UPON BY THE PARTIES
According to the mother’s Case Outline filed 13 September 2024 she sought to rely upon the following documents:
(1)Further Amended Initiating Application filed 13 September 2024;
(2)Financial statement filed 5 August 2024;
(3)Affidavit of Ms Selwood filed 6 August 2024;
(4)Affidavit of Ms Selwood filed 9 September 2024;
(5)Affidavit of Ms FF filed 5 August 2024;
(6)Affidavit of Ms GG filed 5 August 2024; and
(7)Affidavit of Ms HH filed 5 August 2024.
I granted leave for the mother to rely upon her Further Amended Initiating Application filed 13 September 2024 on the first day of the final hearing.
The mother and Ms FF were cross-examined.
According to the father’s Case Outline filed 13 September 2024 he sought to rely upon the following documents:
(1)Amended Response to Initiating Application filed 26 August 2024;
(2)Financial Statement filed 26 August 2024;
(3)Affidavit of Mr Selwood filed 28 August 2024;
(4)Affidavit of Dr EE filed 28 August 2024;
(5)Affidavit of Ms JJ filed 28 August 2024; and
(6)Affidavit of Mr KK filed 28 August 2024.
At trial the father stated he no longer relied on the evidence of Dr EE and Mr KK.
The father was cross-examined.
The documents tendered and received into evidence are set out in Schedule 1 to these reasons.
EXPERT EVIDENCE
Parenting
The Family Report was based, as described by Dr DD, on the material filed by the parties up to the time of the report being written, some documents produced on subpoena and the interviews conducted, as set out at the commencement of his report. Dr DD recorded the observations made by him as a result of conducting interviews with the parents, each of the children, the maternal aunt, the paternal aunt and the paternal uncle. Both parties relied upon the Family Report and Dr DD was the subject of cross-examination.
Family Report Recommendations
Dr DD made recommendations at paragraphs 161 to 163 of his report to the following effect assuming that the Court was open and willing to consider further interim orders to enable implementation of increased time:
(a)The children could ultimately benefit from progressing to an eventual 2/12 or 3/11 of 14 night shared care arrangement between the parents, which could incrementally be reached over 18 to 24 months.
(b)The children’s overnight time with the father should commence in the short term to include Saturday am to Sunday pm on the alternate weekend, with the Wednesday afternoon time in week 2 remaining. This time should be supervised for at least six months, though potentially further, after which, the time should be increased by one night to include Friday after school to Sunday evening.
(c)After a further six months, the children’s time with their father could be increased by a third night, to include Sunday. This progression should be continued until the children are able to spend week 1 from Friday after school to Monday before school, and week 2 Wednesday afternoon with their father. The arrangement should be conditional on the father adhering to the children’s school and extracurricular commitments and engaging in ongoing psychological support to address stress management and parenting skills.
(d)Some part of school holidays should be shared by agreement between the parties, for example up to one week in term holidays and two one-week blocks in summer holidays.
More than two years elapsed between Dr DD’s original assessment of the children and the parents and the date of the trial. As already mentioned, since the report was finalised, a number of interim parenting orders were made which altered the position which was obtained at the time of Dr DD’s report. By the date of trial, as mentioned, the mother no longer insisted upon supervision of the father’s overnight time, and the children had spent some unsupervised overnight time with the father from 23 August 2024. The father acknowledged in his affidavit there were some occasions prior to this where he spent unsupervised time with the children despite the requirements of the interim parenting orders (at paragraphs 283 and 284).
Dr DD received a large volume of updating material from the ICL shortly before the trial. However, he was not asked by the parties to interview either the parents or the children again prior to the trial. He was cross-examined, and as he himself acknowledged, any views he expressed orally at the trial were subject to that limitation.
In his oral evidence, Dr DD provided views on the suitability of wishes orders for the two older children in light of the mother’s changed position with respect to parenting arrangements and the maturation of the children since the Family Report. I discuss these views later in these reasons. The position regarding Z raised some different considerations which I will also come back to.
Property
Several single expert witnesses were appointed to undertake property valuations in this matter. The following affidavits were filed:
(a)Affidavit of Ms LL filed 11 September 2024 annexing the valuation report for Suburb D as at 18 May 2021, 21 November 2022 and 2 July 2024; Suburb Q as at 10 June 2021, 16 November 2022 and 8 July 2024; and Suburb CC as at 28 June 2024.
(b)Affidavit of Mr MM filed 11 September 2024 annexing the valuation report for 2 R Street as at 7 July 2021, 11 November 2022 and 24 June 2024; and 1 R Street as at 24 June 2024.
(c)Affidavit of Ms NN filed on 11 September 2024 annexing two valuation reports for F Pty Ltd as at 31 December 2007, 31 December 2017, 31 March 2020 and 30 June 2022 (“2022 report”); and 30 June 2024 (“2024 report”).
Neither party cross-examined these experts. The real property values were ultimately agreed and relied upon by both parties. The valuation of F Pty Ltd was less straightforward, as discussed below. I have considered these expert opinions and will discuss their evidence as necessary in these reasons.
PART VII – PARENTING ORDERS
These proceedings were heard after 6 May 2024, so the amendments to the Act brought into effect by the Family Law Amendment Act 2023 (Cth) apply.
Orders in respect of children are made under Pt VII of the Act. The meaning of a “parenting order” is given in s 64B. The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B) and subject to s 65DAB.
Section 60B provides that the objects of Pt VII of the Act are to ensure that the best interests of the children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
When making parenting orders, the Court is required to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act specifies the criteria which must be considered when determining what form of orders are in the child’s best interests. These are to be “considered” although express discussion is not necessary (Tibb v Sheean (2018) 58 Fam LR 351 at [74]–[88]).
Best Interests of the Child
In order to determine the child’s best interests s 60CC of the Act provides that:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
For the purposes of s 60CC(1)(a) of the Act the Court must consider the “general considerations” set out under s 60CC(2) which are:
a) What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i.the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b) Any views expressed by the child;
c) The developmental, psychological, emotional and cultural needs of the child;
d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f) Anything else that is relevant to the particular circumstances of the child.
Section 60CC(1)(b) and s 60CC(3) of the Act do not apply to the children in these proceedings.
(a) What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) The child; and
(ii) Each person who has care of the child (whether or not a person has parental responsibility for the child);
Section 60CC(2A) provides:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
In her affidavit the mother gave considerable detail of angry, aggressive, dysregulated, coercive and controlling behaviour by the father over the course of the relationship which constituted family violence. Much of this evidence covered allegations of behaviour said to have been perpetrated by the father on the mother. Some of it involved behaviour which had a direct impact upon the children, either because they witnessed it or suffered it.
I have considered this material carefully, but have not found it very helpful, and it ultimately played a much less important role in the trial than its sheer volume suggested. This is because as the trial unfolded it became unnecessary to make factual determinations about the mother’s allegations of family violence. Despite denying many of the mother’s allegations in his affidavit, the father also conceded both in his affidavit and in cross-examination that he engaged in behaviour which constituted family violence, that was aggressive and controlling of the mother, and was generally reprehensible. He expressed considerable regret about his conduct. The conduct reflected badly on him, but his remorse, which I accept was genuine, had an ameliorating effect. He gave evidence that he has also continued consulting a psychiatrist Dr EE, although he did not rely upon any expert evidence from Dr EE.
The parties ceased living in the same residence in February 2020. The children have been spending both supervised and unsupervised time with the father since then. Presently, the children spend each second Friday night unsupervised during term time with the father. As already pointed out, the difference between the parents about term time with the father lies first in whether any orders should be made for the older two boys to spend time with him, other than in accordance with their wishes, or whether they should be the subject of orders for three nights rather than one, and secondly, whether the youngest child, who is 10, should be the subject of orders for three nights rather than one. If the older boys can spend time with the father in accordance with their wishes, as the mother proposes, this inherently contemplates the possibility of them spending three nights with the father, as he proposes. In relation to Z, the mother also proposed that during school holidays he spend blocks of three nights in the father’s care unsupervised, while the ICL proposed block time increasing to four nights.
So on any view, both parties accept the boys could spend at least three consecutive nights with the father unsupervised. Indeed, it is inherent in the proposal of both the mother, and the ICL, that the older boys could spend even more than three nights in the care of the father. For example, they may choose to spend seven nights each fortnight with the father. The mother said in her oral evidence that the older boys could determine risk for themselves. In other words, the mother’s proposal, supported by the ICL, concedes there is now no unacceptable risk or safety concerns in the care of the father, whatever may have been the position in the past, which required the Court to impose protective orders, such as ongoing supervision.
On the questions of safety and risk, it is difficult therefore to derive much assistance from the long rehearsal of historical allegations by the mother. Rather the narrow question is whether all three boys should be subject to an order requiring them to spend time with the father, or only the youngest child. The allegations of family violence have little to say about the answer to this question, except to the extent that they suggested, according to the mother, that the father’s parenting capacity was likely to become progressively compromised the longer he had care of the children or Z alone over consecutive nights. I note here that the mother submitted that problems with the father’s parenting capacity required specific consideration in relation to Z, because of evidence of that child’s occasional dysregulated behaviour.
While I have considered the mother’s allegations, I am not satisfied they raise issues which should be further discussed under s 60CC(2)(a) in considering what arrangements would promote the safety of the children and the mother. Rather they raised alleged deficits in the father’s parenting capacity, which I will deal with under s 60CC(2)(d), and the ultimate form of the parenting orders.
(b) Any views held by the child:
The views of the children are but one consideration of a number to be taken into account in the overall assessment of their best interests, and their importance may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35]).
In his report, Dr DD records the views of the children as follows:
(a)X expressed quite firmly that he would not want to spend overnight time in the father’s care (paragraph 89). Later in his interview when asked if he would be willing to spend overnight time with the father he stated “I wouldn’t mind in a while – just not yet as it would stress me out…” (paragraph 91).
(b)Y expressed without reservation that he did not want to spend overnight time with the father (paragraph 101).
(c)Z reported that he did not really want to go to the father’s home but when he did go “everything is fine when I get there, but I miss Mum. When I am a teenager or an adult I will be able to make my own decisions” (paragraph 112).
The ICL informed the Court that she met with the children on 19 August 2024, when the children expressed the following views:
(a)X wishes to spend time with the father in accordance with his wishes. X is still spending time with the father but is more focussed on his school, sport and social life. The ICL considers this to be developmentally appropriate.
(b)Y wishes to spend time with the father as per his wishes. Y is very focussed on his schooling and sport. The ICL considers this to be developmentally appropriate.
(c)Z expressed a view that he is happy with the current arrangements and does not want further time with the father. Z expressed being displeased with respect to the father’s physical living situation where the lack of space meant he often had to share a bed with the supervisor prior to the start of unsupervised overnight time, and the apparent disruption to his extracurricular activities which from his perspective, the father does not support.
It can be seen that the children’s views about time with the father evolved between the date of Dr DD’s report and 19 August 2024 when they spoke to the ICL. The reported resistance to overnight time in May 2022 was not maintained, and in fact, as noted, the children have been spending overnight time with the father in the period since May 2022. It is apparent that the children are now more focussed on their own lives, particularly on extracurricular activities, and exercising control over the time they spend with the father.
The father conceded in cross-examination that the views of the children about him and spending time with him have been formed in part by their experience of living with him until February 2020 and witnessing or being subjected to his angry and controlling behaviour, but he believes the children do not now hold concern about spending time with him because he has done therapy to address the issues. I do not find this persuasive. I accept the children have expressed views as conveyed to the Court by the ICL.
In his oral evidence, Dr DD was clear that the views of X and Y should be given considerable weight, on the basis of their ages and levels of maturity. I accept there is force in this view.
The position with Z is less clear because he is younger. Dr DD alluded to the possibility that Z’s views were influenced by his older brothers. It is hard to know the extent to which this is the case. However, I observe that Z’s views about the limitations of the father’s accommodation, which I described earlier, seem understandable. I give Z’s views some weight.
(c) The developmental, psychological, emotional and cultural needs of the child;
There was no dispute that all three boys were intelligent and sensitive. In his oral evidence Dr DD commented:
It really appears that none of those three children are equipped to handle significant stresses and obviously heading into care arrangements where they have felt apprehensive before, tentative about, but then being forced into those over and above what they’re finding as – as tolerable, certainly brings forward concerns about how they’re going to handle that and future risk issues.
(Transcript 23 September 2024, p.46 lines 43–47)
He continued:
…three boys, all who are intelligent and sensitive, but equally all prone to quite elevated anxiety. So we’ve got – we’ve got three children that are not just at the sensitive end of the spectrum but sensitive in terms of then expressing all of their stress and distress and inner turmoil in severe and maladaptive anxiety symptoms.
(Transcript 23 September 2024, p.63 lines 13–17)
Dr DD emphasised the sensitivity of X. He said in his oral evidence that he expected X’s developmental trajectory is likely to have resulted in an increased sensitivity and awareness. He pointed to this as a reason to be cautious about imposing an order requiring him to spend time with the father when he may not want to. Dr DD agreed that if an order was imposed it is “highly likely” that X would cooperate but:
My concern would be how he handles the stress, and given, as I identified from his psychological profile, his capacity for internalised stress is quite concerning, especially with – with somatic symptoms, and I put that into his profile – his capacity to turn his inner stress into physical symptoms, inclusive of hair pulling. So, that’s a very fraught path…
(Transcript 23 September 2024, p.69 lines 46–47, p.70 lines 1–3).
The father argued that a regime for spending time would be of assistance to X because it would remove from him the burden of deciding whether and when he should spend time with the father. In circumstances though where a prescribed order is made that clashes X’s desire to make his own choices against his mother’s desire to avoid a contravention order, Dr DD suggested it may possibly interfere with X’s relationship with his mother and equally a “likely, if not greater risk, is actually to [X] himself in terms of his own health and psychological welfare as his past maladaptive efforts to cope with his levels of stress associated with his parents’ conflict have shown” (Transcript 23 September 2024, p.75 lines 1–3).
The view of both the parents and Dr DD was that Y is very mature for his age and “knows his own mind”. Again this, according to Dr DD, militated against imposing orders requiring Y to spend time with the father. Dr DD expressed that were a prescribed time order made for Y:
…it’s the perfect recipe for creating more problems to – to start directing a headstrong, moody child in a direction that that headstrong, moody child doesn’t want to go. So if – if that’s going to be the approach that the father’s taking to parenting [Y] throughout his adolescence, then I suspect there are – there are problematic times ahead.
(Transcript 23 September 2024, p.48 lines 2–6)
He suggested a wishes order for Y would instead be a way of maximising and engaging adolescent motivation as opposed to antagonising it or being counterproductive.
Both parties and the ICL placed Z in a different category. There was no dispute that Z lacked the same level of maturity as his older brothers. But there was also no dispute that orders should be made for Z to spend time with his father. The difference lay in the amount of time and the duration of the orders.
Dr DD was of the view that were Z to spend time with the father in the absence of his brothers, it would “initially” be “quite positive” and thereafter it would depend on how emotionally attuned the father was to Z’s anxiety and adjustment to being without his siblings. He noted that Z still intermittently co-sleeps with the mother and is “obviously still very, very, much attached to his mother as primary carer” (Transcript 23 September 2024, p.50 lines 5–6). Accordingly, how Z will handle single nights, much less consecutive nights, away from the mother “is going to be challenging and, again, largely dependent on how sensitive the father is to all of this” (Transcript 23 September 2024, p.50 lines 6–9). He suggested the father had shown some improvement in his emotional sensitivity to the needs of Z.
(d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The parties agreed the children should continue to live with the mother and that she should be allocated sole parental responsibility for major long term issues with few exceptions. Her capacity to provide for the children’s developmental, psychological, emotional and cultural needs was not in question, except the extent she was unwilling to promote their relationship with the father.
Parenting capacity and ability to manage stress have been raised as consistent issues in relation to the father. Dr DD at paragraph 178 of his report commented:
178.[Mr Selwood] has shown a positive attitude towards [X], [Y] and [Z], expressing his deep distress that he is not able to spend significant and substantial time with his children, and indicating his willingness to do whatever is required of him to be able to do so in the future. He is reported to have maintained his child support responsibilities and has been fully compliant with all directions placed upon him by both the Court and also by [Ms Selwood]. That being said, his parenting decisions and poor management of stress, have at times been questionable and it is the opinion of this clinician that [Mr Selwood] would benefit from continued support through psychological therapy and parenting courses to assist him to improve in this area in the future. The sooner he engages in both strategies, the more likely it will be that all three boys will observe additional changes to his parenting style and (ideally) increase their confidence in him.
Dr DD continued at paragraphs 180 to 182:
180.[Mr Selwood] continues to exhibit limitations in his reflective capacity and insight as to the impact of his behaviour on those around him. This is not however a strictly 'mental health' issue as it is more an inherent feature of himself. It is his personality. The nature, intensity and impact of this problem has been considerable, and has been an impediment to his capacity to parent [X], [Y] and [Z] in a positive way.
181.That being said, [Mr Selwood] has engaged in some work on his behaviour self management in this regard, and it is evident that he has been making positive progress. It is strongly recommended that he continue to attend (at a minimum) monthly appointments with his treating [psychiatrist], [Dr EE], to ensure that the positive behaviour change continues and is consolidated. It is also strongly recommended that [Mr Selwood] ensure [Dr EE] is provided with third-party perspectives about his behaviour - i.e. from the voices of the children, and/or feedback from [Mr Selwood’s] siblings.
182.[Mr Selwood] has shown a positive attitude and willingness to address this aspect of his behaviour, though it is still concerning however that he ceased psychological therapy after just nine sessions. It is often easy for the majority of people to initially engage in psychological therapy, but it is much, much more difficult for many to sustain this in the context of being challenged along a path of continual personal development and growth. [Mr Selwood] needs to renew his commitment to this process.
The father expressed concern about whether the mother could support and encourage the children’s relationship with him. He claimed that she had perpetuated a negative narrative about him, which influenced the children. It was the father’s case that the mother had successfully imposed unreasonable restrictions on the time the children could spend with him between 2020 and the trial. He argued her proposed orders reflected and continued this tendency. He claimed the mother was unable to accept for example that the requirement for the presence of a supervisor when the children spent time with the father made organising their extracurricular activities more difficult, even though the truth of this was objectively obvious.
But it is also true that the father’s own concessions and the evidence more generally showed that his behaviour towards the mother over the course of the relationship could only have engendered distrust and resentment in her. Moreover, her concerns about his parenting capacity in the past have some justification for the same reasons. I formed the view having carefully considered the mother’s oral evidence that she continues to nurse an abiding negative perception of the father, which may have exposed itself to the children from time to time. Nonetheless, the mother maintained that she would facilitate the children to spend time with the father if they request it and will respect their wishes.
In his report Dr DD observed at paragraph 32:
It was evident that [the mother] held little trust in [the father], and did not believe him to have the capacity to care for their three sons safely. Despite being relatively fixed in her views, to her credit [the mother] was able to acknowledge that the children needed to have relationship with both parents and suggested that she was willing to facilitate this, albeit in minor increments.
Nevertheless, there was also evidence that the mother could be manipulative in dealing with the father about overnight time. One example will suffice to illustrate the point. In mid-2022 the mother arranged a holiday with the boys overseas which required the consent of the father. In seeking that consent, she offered a block of three nights in the father’s care on 12, 13 and 14 July 2022, noting Z could be anxious. There were no court orders for time with the father in the July 2022 school holidays. Eventually on 25 May 2022 the mother agreed to 8–11 July 2022 overnight in the father’s care, after the children returned from overseas, but she said the children “would like to know where they are staying” demonstrating she had discussed the proposed overnight time with the children.
However, once overseas, the mother changed her mind. She messaged the father via the Our Family Wizard application in July 2022 stating she continued “to hold serious concerns for the children’s safety and wellbeing whilst in your care, especially while spending overnight time”. She claimed the children “are exposed to risk of harm” if not properly supervised, and they “are suffering psychological harm, where they are disclosing to me that they are very anxious about spending time with you”, “[Z’s] anxiety is not being adequately addressed or recognised by you” and the children had disclosed “they are not comfortable with spending overnight time with you”.
13. That the Wife shall have liberty to amend this Application upon receipt of the updated business valuation to be completed by Ms NN
PARENTING ORDERS
Parental Responsibility
14. That the Mother have sole parental responsibility for the children, namely: -
14.1 X born 2009;
14.2 Y born 2012; and
14.3 Z born 2014.
in relation to the day-to-day care, welfare and development of the children and all major decisions affecting the children including but not limited to medical, schooling, issue of passports for the children and all other major decisions.
15. That for the purposes of Order 14 herein, for all decisions relating to the children which do not require an urgent decision to be made, the Mother is to inform the Father of a parental responsibility issue that requires a decision to be made and inform the Father of her views on the matter.
Live With
16. That the children live with the Mother.
Spend Time With
17X and Y
18. That from the date of these Orders, X and Y shall spend time with the Father in accordance with their respective wishes.
Z
19. That from the date of these Orders until the conclusion of Term 1, 2026, Z shall spend time with the Father, as follows: -
19.1 In week 1 and each alternate week thereafter, from the conclusion of school or 3:00pm on Friday until 3:30pm on Saturday; and
19.2 In week 2 and each alternate week thereafter, from the conclusion of school or 3:00pm on Thursday until 6:00pm.
20. That from the conclusion of Term 1, 2026, Z shall spend time with the Father in accordance with his wishes.
School Holidays
21. That from the date of these Orders, X and Y shall spend time with the Father during the NSW Gazetted School holidays in accordance with their respective wishes.
22. That from the date of these Orders until the conclusion of Term 1, 2026, Z shall spend time with the Father during the NSW Gazetted school holidays, as follows: -
22.1during the 2025 and 2026 April, June/July and September/October school holiday periods, for the first three (3) consecutive nights in the school holidays from the conclusion of school or 3:00pm on the first day until 3:00pm on the fourth day; and
22.2 during the Christmas period, as follows: -
22.2.122.2.2 In the 2025/2026 Christmas school holidays: -
(a) for three (3) consecutive nights from the conclusion of school (on the last day of Term 4) or 3:00pm on Friday, 5 December 2024 until 7:30pm on 9 December 2024;
(b) for three (3) consecutive nights from 10:00am on 18 December 2024 to 7:30pm on 21 December 2024;
(c) for three (3) consecutive nights from 10:00am on 22 January 2025 to 7:30pm on 25 January 2025.
22.2.3
23. That from the conclusion of Term 1, 2026, Z shall spend time with the Father during the NSW Gazetted school holidays in accordance with his wishes.
Special Occasions
24. That Z spend time with the Father on special occasions, as follows:
Father's Day
24.1 on Father's Day from 9:00 am to 6:00pm;
Father's Birthday
24.2 on the Father's birthday as follows: -
24.2.1 if the Father's birthday falls on a school day then with the Father from the conclusion of school until 7:00pm;
24.2.2 if the Father's birthday fall on a non-live with weekend then with the Father from 9:00am to 4:00pm.
25. That Z spend time with the Mother on special occasions, as follows: -
Mother 's Day
25.1 on Mother's Day from 9:00am to 6:00pm.
Mother's Birthday
25.2 on the mother's birthday as follows: -
25.2.1 if the Mother's birthday falls on a school day then with the Mother from the conclusion of school until 7:00pm; and
25.2.2 if the Mother's birthday falls on a non-live with weekend then with the Mother from 9:00am to 4:00pm.
26. That Z spend Easter with the parties, as follows: -
26.1 with the Father in 2025, from 10:00am on Good Friday to 7:30pm on Easter Monday;
26.226.3 from the April 2026 onwards, the children shall spend time with the parties during the NSW Gazetted school holidays in accordance with their wishes.
Changeover
27. That for the purpose of changeover in these Orders unless otherwise agreed by the parties in writing, changeover is to occur at the residence of the party whose time is commencing.
28. That for the purpose of Order 27 herein, the Father be restrained from entering the Suburb D property.
Schooling
29. That forthwith each parent give all consents, sign all documents and do all things necessary to ensure that each parent can obtain the following from the children's school at their own cost: -
29.1 a copy of all school reports, progress reports and photo order forms;
29.2 notification for activities that they may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend; and
29.3 notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events separately.
30. That the parties continue to share equally in the cost of the children's school fees/private school fees and sporting and extracurricular activities facilitated by their school(s).
Children's Extra-Curricular and Sporting Activities
31. That the Mother provide written notice to the Father of any extracurricular and sporting activities that the children request to participate in, be it through school or privately.
32.33. That the Mother be at liberty to enrol the children in extracurricular and sporting activities that the children have requested to participate in, upon compliance with Order 31 herein.
34. That for the purpose of Order 31 herein, the Father shall do acts and things and sign all documents necessary to enrol the children in extracurricular and sporting activities that the children have requested to participate in.
35. That each party shall deliver and collect the children to and from the children's extracurricular or sporting activities regardless of whom the children spend time with or resides with at the time, in accordance with these Orders.
36. That each of the parties be at liberty to attend the children's extra-curricular activities regardless of whom the children spend time with or resides with.
Telephone Communication
37. That each parent be able to communicate with the children by telephone or other means of electronic communication when the children are with the other parent and in relation to such communication, if a request is made by the parent who does not have the children in their care, the parent with the children in their care will facilitate such communication within (24) hours if possible.
38. That each party shall ensure that the children or either of them are able to freely access a telephone and call the other parent at any time requested by the children or either of them and shall allow the children or either of them to speak to the other parent in privacy and without distraction.
Telephone Number and Address of Children
39. That both parties advise and keep advised the other of their respective residential address, landline, mobile telephone numbers, email address and any changes thereto at all times and within 24 hours of the same occurring.
Change of Residence
40. That in the event that either party moves from where they live that parent will notify the other four (4) weeks prior to such move of any change of address.
Non-Denigration and Restraint
41. That the Parties be restrained by injunction from denigrating the other parent or members of the other parent's family members to the children or in the presence of the children or at all.
42. That the Parties use their best endeavours to ensure that no other person denigrates the others parent or members of the other parent's family to the children or in the presence of the children.
43. That the Father be restrained by injunction from stalking, harassing, and intimidating the Mother.
44. That the Father be restrained by injunction from entering the Mother's residence, unless otherwise agreed between the parties in writing.
s.62B and s.65D
45. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
46. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
COSTS
47. That the Father pay the Mother's costs of and incidental these proceedings.
ANNEXURE B – PROPOSED MINUTE OF ORDERS SOUGHT BY THE FATHER
DEFINITIONS
A. The Court notes the following definitions for the purpose of these Orders:
A.l “Act” means the Family Law Act 1975 (Cth)
A.2 “children” means:
(i) X (born 2009);
(ii) Y (born 2012); and
(iii) Z (born 2014)
A.3 “husband/father” means Mr Selwood born 1983.
A.4 “mother/wife” means applicant Ms Selwood born 1978.
A.5 “Motor Vehicle 1 finance” means B Bank Car Loan #...01.
A.6 “Suburb D property” means the property situated at and known as C Street, Suburb D, in the state of New South Wales and part of folio identifier … registered in the joint names of the parties.
A.7 “Suburb D Mortgage” means mortgage to National Australia Bank …48.
A.8 “parties” means the wife and the husband.
A.9 “Settlement Date” means the date 42 days from the date of these orders.
PARENTING
Live with and spend time with arrangements
1 The children live with the mother.
During school term
2 That for 6 weeks following the date of these Orders the children spend time with the father in accordance with their wishes but for a minimum period of time as follows:
Week 1
2.1 On Friday from the conclusion of school (or 3PM) until 6.30pm Sunday.
Week 2
2.2 On Thursday from the conclusion of school (or 3PM) until 6.30PM for X and Y and until the commencement of school (or 9am) on Friday for Z.
3 That following 6 weeks from the date of these Orders the children spend time with the father in accordance with their wishes but for a minimum period of time as follows:
Week 1
3.1 On Friday from the conclusion of school (or 3PM) until the commencement of school (or 9am) Monday in Week 2.
Week 2
3.2 On Thursday from the conclusion of school (or 3PM) until 6.30PM for X and Y and until the commencement of school (or 9am) on Friday for Z.
4 That upon X reaching the age of 16 he shall spend time with the Father during school terms and school holidays in accordance with his wishes.
5That upon Y and Z reaching the age of 15 and 6 months they shall spend time with the Father during school terms and school holidays in accordance with their wishes.
School holidays
6That during school holiday periods the children spend time with the father as agreed between the parents and failing agreement, then:
6.1 for Term 1 and Term 3 school holiday periods from the conclusion of school on the last day of term to 3pm on the 5th day of the school holiday period (4 nights).
6.2 For Term 2 school holiday periods from the conclusion of school on the last day of term to 3pm on the 7th day of the school holiday period (6 nights).
7 During school holiday period following Term 4 commencing in 2025 the children shall spend time with the father as follows:
7.1 In even numbered years:
7.1.1 From the conclusion of school on the last day of Term until 9am the following Monday;
7.1.2 For a two-week period commencing on 10am Monday of the 3rd week of school holidays and concluding at 5pm Monday on the 5th week of school holidays; and
7.1.3 From 10am Monday until 10am the following Monday commencing on the 8th week of the school holiday period.
7.2 In odd numbered years:
7.2.1 From the conclusion of school on the last day of Term until 9am the following Monday;
7.2.2 From 10am Monday until 10am the following Monday commencing on the 3rd week of the school holiday period; and
7.2.3 For a two-week period commencing on 10am Monday of the 6th week of school holidays and concluding at 5pm Monday on the 8th week of school holidays;
8 The children’s time with the father during school term periods will recommence on the first Thursday of each school term.
9 That for the purpose of Orders 6 to 8 above, the school holiday period shall be in accordance with the published school holiday period of E School.
Special Occasions
10 On special occasions with each party as agreed between the parties but failing agreement then time in accordance with orders be suspended and the children spend time with each parent as follows:
10.1 With the father from 5pm the night before Father’s Day to 5pm on Father’s Day;
10.2 With the mother from 5pm the night before Mother’s Day to 5pm on Mother’s Day;
10.3 On the children’s birthdays as follows:-
10.3.1 If the child’s birthday falls on a school day, with the parent with whom the child is not residing from the conclusion of school until 6pm, and
10.3.2 If the child’s birthday falls on a non-school day, with the parent with whom the child is not residing from 9am to 2pm.
10.4 With the father on the father's birthday as follows:-
10.4.1 If the father's birthday falls on a school day, from the conclusion of school until 6pm, and
10.4.2 If the father's birthday falls on a non-school day, from 9am to 2pm.
10.5 With the mother on the mother’s birthday as follows:-
10.5.1 If the mother’s birthday falls on a school day, from the conclusion of school until 6pm, and
10.5.2 If the mother’s birthday falls on a non-school day, from 9am to 2pm.
10.6 During the Easter period as follows:
10.6.1 In even numbered years, with the father from 9am Good Friday until 12 noon Easter Sunday and with the mother from 12 noon Easter Sunday until 9am on the Tuesday following Easter Monday; and
10.6.2 In odd numbered years, with the mother from 9am Good Friday until 12 noon Easter Sunday and with the father from 12 noon Easter Sunday until 9am on the Tuesday following Easter Monday.
10.7 For the period from Christmas Eve to Boxing Day as follows:-
10.7.1 In even numbered years with the mother from 9am Christmas Eve until 3pm Boxing Day; and
10.7.2 In odd numbered years with the father from 9am Christmas Eve until 3pm Boxing Day.
Changeover, driving and extracurricular activities
11 For the purposes of facilitating these Orders, where changeover does not occur upon the conclusion or commencement of school, changeover is to occur at the home of the parent whose time with the children is commencing.
12 Each party shall ensure the child is transported to any sporting or extracurricular activities in which the child is participating from time to time and which occur at times when the child is in the care of each party, together with any training or other tuition relating to that activity. Such activities outside of school associated activities are to be agreed by mutual consent.
Mutual non-denigration
13 Each party is restrained from denigrating the other parent or any of the children in the presence or hearing of the children or permitting the child/ren to remain in the presence or hearing of any other person whilst they are denigrating the other parent if that party is present at the time of the denigration.
Communication and consultation
14 Both parties do all acts and things to continue to subscribe to the application known as “Our Family Wizard” and each pay their own costs for the application and conduct all communication regarding all matters relevant to the child using this application unless otherwise provided in these Orders or otherwise agreed between the parties.
15 Each party be permitted to communicate with the children by telephone or Facetime when the child is in the other’s care between the hours of 6.30pm and 7pm, with the call to be initiated by the parent seeking contact and to be facilitated by the parent with whom the child is living/spending time.
16 Both parents advise and keep the other advised of their respective residential address, landline, mobile telephone numbers, email address, Skype address and any changes thereto at all times and within 24 hours of the same occurring.
17 In the event that either parent moves from where they live, that parent will notify the other two (2) weeks prior to such move of any change of address and within 24 hours of change of telephone numbers where that parent can be reached.
18 Each parent inform and keep the other informed at all times of the children's health and/or health related issues, and in the event that the children are required to undertake a medical procedure, each parent must consult with the other as soon as is practicable.
19 Each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the children.
20 Each parent be at liberty to attend and obtain a copy of any report prepared by any such specialist medical consultant or relevant health professional within 48 hours of receipt of same and otherwise in a timely manner.
21 In the event that the children or any of them is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the children or any of them attends.
22 Each parent:
22.1 is at liberty to contact the children’s schools to obtain copies of any information relating to the children including, but not limited to, school reports, school circulars, school notices, school invitations, school correspondence, school photographs and other documents concerning the education and the school activities of the children, and any other information in relation to the children’s academic progress and any involvement they may have with the school counsellor;
22.2is at liberty to attend all school functions (including parent-teacher interviews), all sporting events and any other extracurricular activities that the Children participate in which parents are usually permitted to attend, regardless of whom the children are spending time with when those events occur;
22.3 is to provide the other party with an address and a telephone number of the place(s) where the children will be staying during periods of holiday during periods the children are living with them.
23 Neither party will unreasonably prevent the children from having electronic communication with the other parent and each parent will facilitate the children’s communication with the other parent at all times in accordance with these orders.
Travel/Passports
24 That the parties shall each do all acts and things, sign all such documents as may be necessary, attend all Government offices, provide all such necessary documents and pay, equally, all such necessary fees as may be required by the Australian Passport Office within 14 days of being requested to do so either by the father, the mother or an authorised government officer for the purpose of renewing and/or applying for passports for the children.
25 That in the event that the children’s passports or either of them are lost, damaged or stolen, the party who was in possession of the passport/s at the time that it was/they were lost, damaged or stolen shall be solely responsible for the cost of replacing the passport/s, and he/she shall do all acts and things and sign all documents necessary to replace the said passport/s within 14 days of discovering that they were lost, damaged or stolen.
26 That subject to any government restrictions to the contrary, the parties are hereby permitted to take the children out of Australia for holidays, such that the Children are outside of Australia for no more than 3 weeks, and in relation to such Travel (“the Travel”):
26.1 the party intending to Travel with the children (“the Travelling Party”) shall give the other party (“the Non-Travelling Party”) as much notification as possible of his or her intention, and in any event will give not less than 1 months’ written notice of such intention;
26.2 the Travelling Party shall furnish to the Non-Travelling Party not less than thirty (30) days prior to the proposed departure an accurate itinerary to include the following:
26.2.1 a copy of the Travelling Party’s and the children’s airline tickets (if available);
26.2.2 the departure date and return date;
26.2.3 the country or countries the Travelling Party and the children will be travelling to;
26.2.4 the approximate dates on which the Travelling Party and the children will arrive and depart each country; and
26.2.5 a telephone number and address at which the Travelling Party and the children can be contacted in each country.
27 That the mother shall retain the children’s passports at all times that the children are not travelling with the father and for the purposes of this Order the mother shall provide the children’s passports to the father no less than fourteen (14) days prior to the proposed departure and the father shall return the children’s passports to the mother within seven (7) days of the return date.
PROPERTY
28 On or before the Settlement Date the husband shall do all acts and sign all documents as are necessary to transfer to the wife his interest in the Suburb D property.
29 Simultaneously with the transfer of the Suburb D property in the above order the wife shall:
29.1 refinance to her sole name Suburb D mortgage and Motor Vehicle 1 finance; and
29.2 pay the husband a cash adjustment in such amount to give effect to an overall division of the parties’ nett asset pool, once valued and determined, including superannuation, of 50% in favour of the husband and 50% to the wife.
30 To complete the transfer and refinance in by the Settlement date the following shall apply:
30.1 The husband and wife will sign an authority and any other document required by the mortgagee to release the Suburb D mortgage;
30.2 Pending the transfer of the Suburb D property:
30.2.1 The wife shall have the sole right to occupy the property and during such right of occupation the wife shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date.
30.2.2 The husband shall not be permitted to draw down loan account related to the Suburb D mortgage.
30.2.3 The parties hold their respective interest in the Suburb D property upon trust pursuant to these Orders.
30.2.4 Neither party shall encumber the Suburb D property without the consent in writing of the other party or any mortgagee.
31 In the event that the wife does not comply with, Order 29 through no fault by the husband in meeting his obligations in Order 28 (“the Default Date”) then within 21 days of the Default Date the parties shall do all acts and things necessary to list the Suburb D property for sale and effect the sale of the Suburb D property in accordance with Order 32.
32 Except as otherwise agreed by the parties in writing:
32.1 The parties must sign all selling authorities as may be necessary to cause the Suburb D property to be sold by way of public auction through a licensed real estate agent appointed by the parties and failing agreement between the parties, to be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee upon the written request of either party (“the Agent”).
32.2 The parties must sell the property for the amount and on any conditions of sale to be determined jointly by parties in writing in consultation with the Agent and any solicitor/conveyancer acting on the sale.
32.3 The parties must appoint the solicitor/conveyancer to act on the sale of the Suburb D property on behalf of both parties as agreed and failing agreement such solicitor/conveyancer as may be determined by the President of the Law Society of New South Wales in which the property is located or his or her nominee upon the written request of either party and the costs of that appointment are to be borne solely by the Applicant as and when they fall due.
32.4 The parties must co-operate with respect to the sale of the Suburb D property including but not limited to:
32.4.1 Making the key available to the agent;
32.4.2 Allowing access to the property at all reasonable times to prospective purchasers, valuers and licensed real estate agents as may have been appointed by the parties;
32.4.3 Doing or saying nothing to hinder or prevent a sale being effected;
32.4.4 Signing all documents in relation to the sale approved by the agent and/or solicitor acting on the sale as the case may be; and
32.4.5 The wife must maintain the property in reasonable condition and repair having regard to its present condition and the state thereof, pending completion of the sale of the property.
32.5 The Agent is to nominate the date of sale which will be not more than 2 months after the Agent has been appointed.
32.6 If the reserve price of the Suburb D property is not reached, the parties may negotiate on with the highest bidder or any other bidder present at the auction or any other interested party in an effort to sell the property at a price not more than 5% below the reserve price for the respective property or otherwise for a price determined as agreed between the parties in writing in consultation with the Agent.
32.7 If a Contract for Sale for the property is not exchanged at a price of not more than 5% below the reserve price within 14 days of the auction taking place then the parties must forthwith re-list the property for sale by private treaty with the Agent and the Agent will, sell the property at the highest price offered in writing and received by the Agent within a period of 60 days from the date of the auction, provided that the price is not more than 10% below the reserve price.
32.8 If the highest price offered is more than 10% below the reserve price, the property will be forthwith listed for sale by way of public auction with the Agent and the Agent will determine the auction date and the property must be sold to the highest bidder at that auction, and either party will be at liberty to bid at the auction and that there will be no reserve price.
32.9 The wife must pay the auction expenses as and when they fall due. If the wife fails to do so, the auction expenses must be deducted from the wife’s share of the sale proceeds of the property.
33 That on settlement of the sale of the Suburb D property in accordance with Orders 31 and 32, the proceeds of sale are to be applied in the following order and priority:
33.1 In full payment of the Suburb D mortgage, Motor Vehicle 1 finance and any outstanding council rates and water rates;
33.2 In full payment of any outstanding costs of the sale including agent’s commission and legal costs on the sale;
33.3 Payment to the husband in such amount to give effect to an overall division of the parties’ nett asset pool, once valued and determined, including superannuation, of 50% in favour of the husband and 50% to the wife.
34 Unless otherwise referred to in these Orders each party shall be solely liable for any debts due in their sole name and each party shall be entitled to retain any other assets or financial resources held in their possession or in their name as at the date of these Orders.
35 Each party shall sign any such documents that may be required to give effect to the terms of these Orders within 7 days of a written request so to do in default of a party signing any document that is requested by the other party then the Registrar of the Federal Circuit and Family Court of Australia at Sydney is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to sign any such document on behalf of the defaulting party.
COSTS
36 The wife pay the husband’s costs of these proceedings.
ANNEXURE C – PROPOSED MINUTE OF ORDERS SOUGHT BY THE ICL
1. That the children:
a. X, born 2009 (“X”);
b. Y, born 2012 (“Y”); and
c. Z, born 2014 (“Z”),
(collectively referred to as “the children”) live with the Mother.
2.That X and Y spend time and communicate with the father in accordance with their views and wishes.
3. That Z shall spend time with the father:
a. From the date of these orders for a period of six (6) months:
i. During school terms:
1.Week 1 – On Friday from after school or 3:00pm until 3:30pm on Saturday;
2.Week 2 – On Thursday from after school or 3:00pm until 6:00pm.
ii.During each school holiday period for three nights from 10:00am on the first Saturday of the school holiday period until 6:00pm on the following Tuesday.
b. From the conclusion of Order 3(a) and until the conclusion of Term 1, 2026:
i. During school terms:
1.Week 1 – On Friday from after school or 3:00pm until 6:00pm Sunday;
2. Week 2 – On Thursday from after school or 3:00pm until 6:00pm
ii.During the school holiday period that immediately follows Terms 1, 2 and 3, for four (4) nights in each school holiday period commencing at 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm the following Wednesday.
iii.During the term 4 school holiday period for three (3) periods of four (4) nights as follows:
1.From 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm the following Wednesday;
2. From 6:00pm on 1 January until 6:00pm on 5 January;
3. From 6:00pm on 20 January until 6:00pm on 24 January.
c. From the conclusion of Order 3(b) until Z reaches 13 years of age:
i. During school terms:
1.Week 1 – On Friday from after school or 3:00pm until 6:00pm Sunday;
2. Week 2 – On Thursday from after school or 3:00pm until 6:00pm
ii.During the school holiday period that immediately follows Terms 1, 2 and 3, for five (5) nights in each school holiday period commencing at 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm the following Thursday.
iii.During the term 4 school holiday period for three (3) periods of five (5) nights as follows:
1.From 10:00am on the first Saturday of the school holiday period and concluding at 6:00pm the following Thursday;
2. From 6:00pm on 1 January until 6:00pm on 6 January;
3. From 6:00pm on 20 January until 6:00pm on 25 January.
iv.Such other times as agreed between the parties or as expressed by Z.
d.From the time Z turns 13 years of age, Z shall spend time and communicate with the father in accordance with his views and wishes.
4.That notwithstanding Order 3(a) – 3(c) (inclusive) herein, Z will spend time with the parents on special occasions as agreed between the parents and failing agreement as follows:
a.The father on Father’s Day from 9:00 am until 5:00 pm in the event that the children are not otherwise spending time with him pursuant to these Orders.
b.The mother on Mother's Day from 9:00 am until 5:00 pm in the event that the children are not otherwise spending time with the mother on that weekend pursuant to these Orders.
c.For Christmas in 2024 and each alternate year thereafter (being even numbered years):
i. The father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
ii. The mother from 2:00 pm Christmas Day until 5:00 pm Boxing Day.
d.For Christmas in 2025 and each alternate year thereafter (being odd numbered years):
i. The mother from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
ii. The father from 2:00 pm Christmas Day until 5:00 pm Boxing Day.
5.The parties shall use their best endeavours to encourage and ensure the children to spend time with the parents on special occasions pursuant to Order 4 herein at any time in which the children’s spend time arrangements with the father are in accordance with their expressed views and wishes pursuant to Order 2 and Order 3(d).
6.That changeover location shall be at the school on a school day and at the mother’s home on a non-school day, with the father to collect and deliver the child/ren at this location.
7.Each parent will communicate to the other any expressed views or wishes of any of the children via the ‘Our Family Wizard’ application if the wishes are expressed directly to one parent.
8.That the children shall have telephone communication with the father in accordance with their views and wishes at all reasonable times.
9.That each parent shall use all reasonable endeavours to ensure all communication between the parents is respectful and limited only to matters concerning the parenting arrangements for the children.
10.That except in the case of an emergency the parents are to communicate with one another via the co-parenting app ‘Our Family Wizard’.
11.Both parents shall keep the other advised at all times of their residential and email addresses and contact telephone number and shall advise the other party within 48 hours of any change to either their residential and email addresses and contact telephone number.
12.Each parent shall be permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
13.Each parent is at liberty to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
14.Each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
15.Both parents shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
16.Both parents shall keep the other advised of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
17.Without limitation to any other Order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis.
18.Without admissions, when the children are in their respective care, each parent is restrained from:
a. Physically disciplining the children or permitting any other person to do so;
b.Interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
c.Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
d.Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
e.Permitting the children having access to any of the documents filed in these proceedings;
f.Communicating any information intended for the other parent through the children.
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