Shinohara & Shinohara
[2025] FedCFamC1A 126
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Shinohara & Shinohara [2025] FedCFamC1A 126
Appeal from: Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122 Appeal number: NAA 185 of 2025 File number: MLC 6309 of 2023 Judgment of: WILLIAMS, ALTOBELLI AND CAMPTON JJ Date of judgment: 23 July 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant’s Summary of Argument does not engage with the grounds in the Amended Notice of Appeal – Consideration of rule 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Consideration as to how deficient grounds of appeal are liable to elude or conceal essential points – Where the appellant alleges factual error, error by failing to take into account a material consideration, weight errors and inadequate reasons – Errors not established – Where the Summary of Argument but not a ground of appeal alleges error in making orders providing for the increase of time spent tethered to the appellant undertaking a specified course of clinical psychological treatment for a finite period – Whether the orders for therapeutic treatment impermissibly delegated judicial authority to the treating psychologist – Consideration of Lainhart & Ellinson [2023] FedCFamC1A 200 and Miyajima & Mikkelson [2024] FedCFamC1A 208 – No merit in the additional matter raised in the Summary of Argument – Where error is not established – Parenting appeal dismissed – Appellant to pay the respondent’s and the Independent Children’s Lawyers costs in the parenting appeal in a fixed sum.
FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from two orders adjusting the property of the parties but does not challenge the balance of the suite of orders made pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the primary judge erred in failing to afford procedural fairness, to consider material and provided inadequate reasons – Property appeal allowed.
FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Consideration of principles as to the notional adding back of property at the date of assessment that no longer exists – Consideration of s 79(3) of the Family Law Act 1975 (Cth) – Where add backs cannot be identified as the legal and equitable interests of the parties or either of them in property at the date of assessment – Where hence add backs cannot be included in the “balance sheet” identifying and valuing that property for adjustment – Where the mandate of justice and equity that permeates s 79 is shaped from the particular circumstances of each case – Where the historic categories of add backs are to be recognised and considered within the matrix of either s 79(4) as part of the contribution history to the date of assessment and/or s 79(5) as a consideration of the impact of the disposal of property on current or future circumstances – Where such consideration, by either s 79(4) or s 79(5), forms part of a holistic assessment – Where the superannuation property remains as consensually adjusted by the primary judge as to 47 per cent to the appellant and 53 per cent to the respondent – Where on re-exercise the non-superannuation property is adjusted 67.5 per cent to the appellant and 32.5 per cent to the respondent, and both the combined superannuation and non-superannuation property is adjusted 57.5 per cent to the appellant and 42.5 per cent to the respondent – Costs certificates ordered.
Legislation: Family Law Act 1975 (Cth) s 79, s 114UB
Family Law Amendment Act 2024 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Federal Proceedings (Costs) Act 1981 (Cth)
Addendum to the Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth)
Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth)
Supplementary Explanatory Memorandum. Family Law Amendment Bill 2024 (Cth)
Cases cited: Antmann& Antmann (1980) FLC 90-908; [1980] FamCA 64
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Cerini & Cerini [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61
De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94–065; [2021] FedCFamC1A 84
Horrigan & Horrigan [2020] FamCAFC 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kowaliw v Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Lainhart & Ellinson [2023] FedCFamC1A 200
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Miyajima & Mikkelson [2024] FedCFamC1A 208
Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Townsend & Townsend (1995) FLC 92-567; [1994] FamCA 144
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 149 Date of hearing: 2 July 2025 Place: Melbourne Counsel for the Appellant: Ms Tiernan Solicitor for the Appellant: Taussig Cherrie Fildes Counsel for the Respondent: Mr Hutchings Solicitor for the Respondent: Blackwood Family Lawyers Counsel for the Independent Children's Lawyer: Ms Swann Solicitor for the Independent Children's Lawyer: Barbayannis Lawyers ORDERS
NAA 185 of 2025
MLC 6309 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHINOHARA
Appellant
AND: MR SHINOHARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS, ALTOBELLI AND CAMPTON JJ
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Orders 40 and 41 made by the Federal Circuit and Family Court of Australia (Division 1) on 31 March 2025 are set aside.
3.The respondent pay within 28 days $115, 262.50 to the appellant.
4.Within seven days of the appellant serving upon the respondent documents verifying that she has paid and discharged the Centrelink childcare subsidy debt (being $39,444 reduced to $21,994.89 and any interest accrued thereon), the respondent shall pay to the appellant 50 per cent of the amount paid by the appellant.
5.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the property appeal.
6.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the property appeal.
7.The appeal is otherwise dismissed.
8.The appellant pay within 28 days the costs of the Independent Children’s Lawyer in the parenting appeal fixed in the sum of $3,865.
9.The appellant pay within 28 days the costs of the respondent in the parenting appeal fixed in the sum of $5,000.
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 a pseudonym Shinohara & Shinohara has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS, ALTOBELLI & CAMPTON JJ:
By way of an Amended Notice of Appeal filed on 26 May 2025, Ms Shinohara (“the mother”) appeals from Orders 1 to 39 inclusive regulating the parenting of children aged six and four years of age and from Orders 40 to 55 inclusive adjusting property made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 31 March 2025. During the hearing of the appeal, the mother restricted the property appeal to challenge Orders 40 and 41.
Mr Shinohara (“the father”) opposed the appeal. The Independent Children’s Lawyer (“the ICL”) opposed the parenting appeal.
At trial, as to parenting, dispute existed as to parental responsibility and major long-term decision-making, with whom the children will live and the terms as to the time the children will spend with the other parent. The primary judge found (at [18] and [108]–[110]) that the totality of the psychiatric, psychological and other evidence concluded that the mother poses an unacceptable risk to the safety of the children by reason of her mental health challenges and vulnerabilities when stressed.
The parenting orders subject to challenge provide for the father to have sole parental responsibility and decision-making for the children and for them to continue to live with him. They provide for the children to spend time with the mother on each Wednesday evening and on alternate weekends from Friday after school until Sunday evening. The terms of increasing time spent by the children with the mother is then tethered to the mother attending on a clinical psychologist with expertise in the field of trauma and trauma response for trauma focused cognitive behavioural therapy regularly (no less than once each fortnight) for treatment of her mental health challenges and the adverse effects of stress. Compliance with the treatment orders produces a progression of the terms of time spent with the children to be then overnight each alternate Wednesday, and then to overnight from each alternate Wednesday until Friday, in addition to alternate weekends. It also provides at or about the time of completion of the treatment regime for block time during the school holidays from when the younger child attains six years of age.
As to property adjustment, at the conclusion of the trial, the mother and the father agreed that it was just and equitable for their superannuation entitlements to be adjusted, with a splitting order made of $69,483 from the father’s entitlements in favour of the mother (at [121]), providing for the mother to receive roughly 47 per cent of the superannuation property of the parties and for orders that each would otherwise retain their respective other current property of modest value in their possession or control (at [150] and [154]). The agreed values of these items were $21,090 held by the father and $6,386 held by the mother. The mother abandoned her challenges to these consensual orders during the hearing of the appeal.
The disputed property adjustment at trial and on appeal was as to the distribution of the balance of proceeds of sale of the home of $589,155 (at [125] and [133]) and as to whom between the parties would assume responsibility for a liability of $21,994.89 due to Centrelink by way of a childcare subsidy debt (“the Centrelink debt”) in the name of the mother (at [155]–[157]).
The mother at trial sought that the $589,155 be adjusted as $400,000 in her favour and the balance equally divided, such that she would receive $494,577.50 and the father would receive $94,577.50. The father sought for the balance of the proceeds of sale of the home to be divided equally, so that each of he and the mother would receive $294,577.50. As to the Centrelink debt, the mother sought that this be paid by the parties with contributions proportionate to the parties’ respective incomes. The father sought that the Centrelink debt be paid from the proceeds of sale of the home prior to any distribution to the parties.
Order 40 divided the proceeds of sale of the home equally. Order 41 directed that the parties be equally liable for and pay the Centrelink debt.
For the reasons that follow, the appeal from the parenting orders will be dismissed. The appeal from Orders 40 and 41 will be allowed, with this court re-exercising discretion so that the balance of proceeds of sale of the home of $589,155 will be adjusted such that the mother will receive $409,840 and the father will receive $179,315. An order will be made that the father pay to the mother $115,262.50 within 28 days. By consent, the father is to pay to the mother 50 per cent of the Centrelink debt upon the mother serving him with documents verifying the amount she has paid to discharge that debt.
BACKGROUND
The mother is 42 years of age. The father is 40 years of age. The parents commenced cohabitation in or around late 2016 or 2017, the precise date not being material, married in October 2018 and separated in February 2023.
On separation the father obtained a family violence intervention order excluding the mother from the home. The parties’ two children have lived with him since that time.
Following the making of the family violence intervention order, the mother spent time with the children for four hours each week supervised by the maternal grandfather and had electronic communication with the children on three occasions during each week. From June 2023, time was supervised by a professional agency.
A large volume of evidence was adduced as to the mother’s mental fabric, including as to her thoughts, associated emotions and behaviours being vastly disproportionate to perceived stressors or unsupported by reality. The reasons record:
11One of the major issues in this litigation was the mother’s mental health and the risk of harm she posed to the children, especially to their emotional and psychological wellbeing by reason of the mother’s mental health history and personality vulnerabilities.
12It was undisputed that the mother’s interactions with her father in her youth were difficult. Various sources of evidence disclosed that the mother’s father was a dominating and domineering influence on the mother over many years.
13The evidence in this trial revealed episodes where the mother’s reaction to seemingly innocuous events caused the father to become concerned about the mother’s mental health. One involved the mother forming the belief that an unidentified male, thought to live near the home where the mother, the father and the older child then lived, was behaving inexplicably by being frequently outside the mother’s place of residence. Another involved the mother reporting that she heard noises being emitted from electric cables resembling morse code about which reports the father became concerned. In addition to other episodes which the father considered to be very concerning, the father obtained an intervention order against the mother, the effect of which was to restrain the mother from being physically present or proximate to him and the children. The mother was thereby forced to leave the former matrimonial home.
14The evidence of the connection between the children’s behavioural issues and the mother in the years 2021, 2022 and 2023 was not straight forward. The older child progressively exhibited behaviour described in the medical evidence in this case as “stimming”, most simply expressed as a self-soothing pattern of conduct exhibited by a person in highly stressed circumstances by which the affected person attempts, without being aware of the relevant stimming conduct, to reduce the impact of stress on the person. In certain aspects of the psychological evidence in this case, the stimming behaviour was described as being exhibited when the affected person is in a trance-like state.
15The younger child exhibited behaviour from an early age that included bed wetting. The mother disputed that any connection existed between her conduct towards the children and the behavioural traits exhibited by the children.
16A major issue in this litigation was the safety of the children in the mother’s care having regard to her own mental health issues.
17No mental health issues were asserted against the father.
(As per the original)
Evidence was adduced as to other characteristics of the mother’s mental health presentation, including that her mental health challenges began in 2017 (at [22(i)]), that her mental ill health is transient (at [30(c)]), that she is extremely vulnerable to stress and can be triggered by various stressors (at [32]), that her mental health presented similarities to a delusional disorder or paranoid personality disorder (at [33(b)]), that the mother is in denial about her mental illness (at [34]) and is pathologically jealous (at [38(m)]).
On 6 November 2023, the ch 7 single psychiatric expert, Ms G, produced a report as to the mother’s mental health presentation. On 23 November 2023, orders were made progressing the mother’s time spent with the children to be unsupervised. From January 2024 until the date of trial, the mother spent unsupervised time with the children each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday and on Wednesday from 9.00 am until 6.30 pm. On 15 January 2024, the ch 7 single parenting expert, Dr F, produced a report.
By way of implementation of the recommendations contained in the ch 7 single expert evidence, the elder child attended on a clinician specialising in sexualised behaviours and sexual abuse.
THE APPEAL
A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The relevant principles which govern appeals from discretionary judgments such as that under challenge are well settled. Error as to judicial process or procedure, or of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”), must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The weight or importance given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children, or in adjusting property so as to achieve justice and equity, is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519–520).
The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted to have been made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The importance of identifying the error in the judgment under appeal by way of the construction of the grounds of appeal ought not be discounted or overlooked. Deficient grounds of appeal are liable to elude or conceal essential points. An appellant does not have cause to complain if an appeal is dismissed because of the path and product of their own actions or inactions.
The seven grounds prosecuted by the mother in the parenting appeal and the seven grounds in the property appeal are an epitome of deficient drafting and confusion, conflating disparate categories of asserted error and failing to set out a precise and specific statement of the point to be argued.
The challenges presented by the mother’s grounds of appeal are compounded by the failure of her Summary of Argument to implement rule 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It provides:
(2) For the purposes of subrule (1), a summary of argument must:
(a)set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript)…
(Emphasis added)
Unless an error is reasonably obvious, the onus is on the appellant to identify the error. An appellate court cannot be expected to hunt through the broadly expressed arguments that are set out in an appellant’s Summary of Argument with a view to distilling a concise ground or grounds of appeal, nor dig through many affidavits, transcripts and decisions in order to find material which may be relevant to the questions in the appeal (Newett and Newett (No 2) (2021) FLC 94-051 at [34] referring to Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
The mother’s Summary of Argument is cast in a narrative style. It groups the grounds of appeal but not by category of appellate error. Some groupings are by topic while others are not. It often argues disparate or juxtaposed categories of appellate complaint that are then intertwined, venturing to complaints not referred to in the nominated ground.
CONSIDERATION
The parenting appeal
The consideration of the parenting grounds will be grouped by adopting the approach of the mother in her Summary of Argument.
Ground 1: “The Primary Judge erred: (a) by failing to take into account adequately or at all, all of the evidence as to the mother’s mental health; (b) by failing to properly consider and assess the evidence that the Primary Judge did take into account; and (c) in making the findings that the Primary Judge did as to the impact of the mother’s mental health on the children in the past, the present and the future.”
As to sub ground 1(a), it is challenging on appeal to deal with a sub-ground which argues that a primary judge failed to have regard to a matter and at the same time contends a failure to afford adequate weight to the same matter. Both cannot be available. During the hearing of the appeal, the mother confirmed that sub-ground 1(a) was a failure to take into account “all of the evidence” as to the mother’s mental health. The weight complaint in the sub-ground was abandoned.
The gravamen of the complaint in sub-ground 1(a) was submitted to be that the reasons fail to refer to the evidence of the mother’s psychologist, Ms LL, and hence error is established by a failure to take into account a material consideration as to the fact and/or the treatment of the mother’s mental health.
It is uncontroversial that during the hearing the mother relied upon the affidavit of Ms LL filed on 12 June 2024 annexing reports dated 31 May 2023 and 28 May 2024 (Mother’s Case Outline document, AB p.1,824), albeit that Ms LL was not available for cross-examination (Transcript 11 November 2024, p.31 line 44). Ms LL’s affidavit was not included in the 3,713 page Appeal Book, it being consensually added prior to the hearing of the appeal.
To understand the complaint and its rejection, it is necessary to unpack some background to give context.
Aside from the affidavit of Ms LL, extensive reports as to the mother’s historical and current mental health presentation and treatment were adduced into evidence from:
(a)Dr M, her treating clinical psychologist. The primary judge found Dr M to be a “highly qualified, highly credentialled and highly experienced clinical psychologist, well versed in matters of a psychological nature relevant to the mother” (at [20]);
(b)Ms G, the ch 7 single consultant psychiatrist “with additional qualifications in infant, child and adolescent mental health, the treatment of trauma related mental health disorders and in the field of parenting disturbances” (at [25]); and
(c)Dr F, a clinical and forensic psychologist and the ch 7 single parenting expert. The primary judge found (at [42]) Dr F had:
substantial experience and higher qualifications to enable her to address the behavioural issues raised in this litigation, especially in relation to the behavioural manifestations of people with severe personality disturbances and dysregulation. Dr [F] was also well qualified to speak of stress and dysregulation and the impact of each on the human condition…
Each of Dr M, Ms G and Dr F were cross-examined.
Dr F said that Ms LL is not a clinical psychologist (Transcript 13 November 2024, p.238 line 16), that the purpose of the mother’s attendance on Ms LL was for self-care and emotional coaching in her parenting of the children (Transcript 15 November 2024, p.416 lines 22–26) and that any treatment was not targeted to addressing the mother’s mental health presentation (Transcript 15 November 2024, p.438 lines 8–15). Ms G said the mother’s attendance on Ms LL was not substantial and did not address the mother’s “underlying more significant issues” (Transcript 14 November 2024, p.397 lines 8–17).
As a starting point to this sub-ground, judges are not required to, nor could they, refer to every piece of evidence and every submission in the reasons for judgment. The mere fact that they were not expressly mentioned does not mean that they were not taken into account implicitly (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at [41]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386; Tibb v Sheean (2018) 58 Fam LR 351 at [75]–[88]).
That said, the reasons record:
18Having considered the totality of the psychiatric, psychological and other evidence about the mother in respect of assertions that she poses an unacceptable risk to the children by reason of her mental ill health, I am of the view that the orders proposed by the father, in which the ICL agrees, should be made.
THE MEDICAL EVIDENCE CONCERNING THE MOTHER
19A very considerable amount of time in the trial of this proceeding was devoted to addressing the contention advanced by the father that the mother has a mental health condition that leads to delusional and paranoid behaviour. A large body of evidence was adduced in this proceeding about the mother’s mental fabric. Not all witnesses who gave that evidence were the subject of questioning or gave viva voce evidence and several medical reports went into evidence unchallenged thereby becoming part of the agreed court book.
(Bold emphasis added) (Footnotes omitted)
The only witness who gave evidence at trial by way of an affidavit annexing a report as to the mother’s mental fabric who was not cross-examined, and hence their evidence was unchallenged, was Ms LL.
The reasons (at [18]) record that the primary judge considered all the psychiatric and psychological evidence, and hence the evidence of Ms LL. During the appeal hearing, the mother was unable to engage with this proposition, nor could she support the gravamen of her complaint that there was no reference to Ms LL’s evidence in the reasons. The evidence of Ms LL was identified.
Further, “consider” does not mean that all evidence must be discussed, especially when the bulk of the evidence leads inexorably to the conclusion, as was the case here. The comprehensive identification and evaluation of the clinical and forensic expert evidence of Dr M, Ms G and Dr F led to intermediate findings:
43On considering the totality of the medical evidence in this case, it is apparent from Dr [M] that the mother is continuing to make significant improvements in her treatment for her mental health issues. Dr [M]’s expression of optimism will no doubt provide a degree of reassurance about the benefits of ongoing psychological treatment to which the mother must subject herself. However, the steps yet to be undertaken by the mother call for immense dedication. On Dr [F]’s formulation, fortnightly sessions are required and are not-negotiable precursors to any enlargement of the mother’s time with the children.
44A matter that has weighed heavily with me is [Ms G]’s observation that the vulnerabilities affecting the mother may never leave the mother so an ever-present risk exists that the mother’s mental health could deteriorate if the mother is adversely affected by stressors that she fails to or is unable to adequately manage. So far, Dr [M] has treated the mother, successfully as it happens, to the point that Dr [M] is well pleased with the mother’s progress.
45The mother has invited me to make an ambitious collection of orders ranging from her having equal shared parental responsibility, increased time and for the children to live with her. Dr [F] has cautioned against projecting beyond the end of term one of the 2025 school year. Yet final orders are sought by all parties. The parties seek orders being made now that operate until the children each turns 18 years of age. Making orders now that are final has the advantage of removing the parties and the children from the litigation process, and with it, all attendant stress and uncertainty. On the other hand, the pronouncement of final orders now, in a fluid and potentially dynamic set of circumstances, especially where the mother has participated in only 21 sessions with Dr [M], is no barometer against which to successfully measure the certainty of behaviour on the mother’s part. Dr [F] was only willing to offer views about the appropriateness of orders being made operable for less than a calendar year, vastly less than to a date when each child attains her majority. Recognising that all parties sought final orders in circumstances where the success or otherwise of the mother’s therapy is unknown, the possibility emerges that in years to come one party is likely to apply to the court for orders varying the ones I pronounce. In order to do that, the party applying will need to invoke the rule in In the Marriage of Rice v Asplund. I raised this with all counsel in final addresses and each agreed to the making of final orders.
(As per the original)
The identification of the evidence of Ms LL (at [19]) coupled with the intermediate findings (at [43]–[45]) establishes that the mother’s complaint by way of the sub-ground is unsustainable. The sub-ground then can only be that the evidence of Ms LL did not attract the probative weight she hoped or expected.
Leaving aside, as discussed later in these reasons, that a complaint as to weight is baseless unless advanced to support an argument that the result was manifestly unreasonable or unjust, it is incumbent on a party, who contends on appeal a failure to consider or give attention to a material matter, to demonstrate that the primary judge’s attention was drawn to the evidence material to that matter unless it is fundamental and obvious (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (at [120])). During the hearing of the appeal the mother could not identify where she drew the primary judge’s attention to any finding sought from a consideration of the evidence of Ms LL other than she had attended on Ms LL from March 2023, prior to being ordered to attend on a clinical psychologist, and has continued to attend on Ms LL. She directed her oral and written submissions as to findings regarding her mental health presentation and its clinical treatment to the evidence of Dr M, Ms G and Dr F (Transcript 28 February 2025, p.25 line 19 to p.33 line 8). As identified by the ICL during the hearing of the appeal, the mother did not identify how any failure to expressly record the provision of services by Ms LL for the mother’s self-care and emotional coaching was material to the intermediate findings as to her historical and current mental health presentation and treatment.
The mother has failed to establish how the evidence of Ms LL was material to the final parenting orders as made such that a miscarriage of justice occurred. Sub-ground 1(a) is the product of an armchair appeal and has no merit.
Sub-ground 1(b) was identified by the mother during the hearing of the appeal as a weight challenge. Complaints as to the weight or importance afforded to evidence are matters that were essentially for the primary judge. The mother implicitly accepted during the hearing of the appeal that if an appellate court may have given them some, less, or more weight does not establish error of the kind identified in House unless the outcome is unreasonable or plainly unjust, which is not the case here (Hedlund & Hedlund (2021) FLC 94–065 adopting CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”)). Nevertheless, the mother would not abandon the sub-ground. The sub-ground fails.
Sub-ground 1(c) asserts three factual errors as to the impact on the children of the mother’s mental health challenges and presentation, being historically, currently, and prospectively. The mother failed to comply with r 13.23(3) of the Rules for the purposes of agitating any of the three factual challenges argued under this-sub ground. The rule provides:
(3) If a party intends to challenge any findings of fact, the summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
(As per the original)
Further, the sub-ground was not addressed by the mother’s Summary of Argument. Instead, a single impugned factual error was asserted (at [67(d)]). To give the complaint context, a series of related findings were made (at [67]), unchallenged on appeal, save that at sub-paragraph (d). The paragraph records:
67……Several findings of fact may now be pronounced by me relevant to the orders I make which promote the safety of the children. They are as follows –
(a)the mother possesses vulnerabilities that emerged in her childhood rendering her susceptible to adverse consequences from various stressors;
(b)the mother at no relevant stage has exhibited major mood disorder, major depression, psychotic symptoms, schizo-affective disorder or schizophrenia;
(c)the mother has not presented with ongoing paranoid delusions, formal thought disorder or behavioural or motor disturbances;
(d)the mother most likely is correctly diagnosed as having a [personality disorder / poor mental health behaviour];
(e)soon after the birth of her child in 2021 the mother was severely impacted by stressors then exerted on her, such impact being severe by reason of the vulnerabilities from which the mother acquired suffered from episodes she experienced in her childhood and adolescence;
(f)Dr [M], clinical psychologist, has engaged with the mother in her treatment for mental health issues leading to positive progress, thus far;
(g)ongoing stress management is foundational for improvement in the mother’s mental health;
(h)for persons with underlying vulnerability to poor stress management, big responses are predictable where that person is overwhelmed; and
(i)in the mother’s case, if she is not undergoing treatment for stress management, and she is overwhelmed by stress, her reaction may be similar to the behaviour exhibited in 2021 soon after her child was born.
(Emphasis added)
The mother must establish on appeal that the finding of fact subject to complaint was material and not open on the evidence (Edwards v Noble (1971) 125 CLR 296). Simply because other findings of fact may also have been open on the evidence does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. To establish an error of fact, it is necessary for the mother, as an appellant, to establish that the impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable; or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]).
The consensus amongst Dr M, Ms G and Dr F was that the mother clearly experienced significant mental health episodes for which she had not been appropriately treated until after the commencement of the litigation. Dr M opined that the mother did not “suffer” from any mental health disorder and that it was unlikely that she has a “severe mental health problem” (at [22(c)–(d)]). Nevertheless, Dr M offered a diagnosis of acute stress disorder experienced by the mother at various times since 2017 (at 62(b)]). The challenged finding by sub-ground 1(c) reflects the provisional opinion of Ms G contained in her report (at [29]) that a “more realistic” differential diagnosis of the mother was that she had a delusional disorder (paranoid type) or a paranoid personality disorder (AB p.1,660) as reinforced by Dr F, who expressed a provisional opinion in her report consistent with that of Ms G (AB p.1,784). This expert evidence gives context to the primary judge’s findings (at [28] and [67(d)]) as to the complexity of the mother’s mental health presentation. The primary judge’s use of the term “most likely” (at [67(d)]) is an ineloquent phrasing of Ms G’s and Dr F’s evidence as to a differential diagnosis.
The mother’s complaint as to the finding (at [67(d)]) in reality is that she wanted a different intermediate conclusion as to her mental health by acceptance of the evidence of Dr M rather than the intermediate finding made by the primary judge. Appellate error is not demonstrated by the primary judge coming to a different conclusion than that agitated by the mother. On one view, the complaint ought not have been made in circumstances where the mother accepted during submissions that Ms G’s evidence was “balanced” (Transcript 28 February 2025, p.29 line 37 to p.30 line 6) and expressly said she was not asking the primary judge to “reject” Ms G’s evidence (Transcript 28 February 2025, p.29 lines 37–40). The mother could not identify or establish how the finding (at [67(d)]) was not open on the evidence, glaringly improbable, or contrary to compelling inferences, to enliven appellate intervention. The complaint fails at that point.
If that conclusion is in error, the focus of the ground would then shift to whether the error impacted the result of the parenting case (De Winter and De Winter (1979) FLC 90-605). The materiality of the error and whether it is to impugn the result would become the heart of this sub-ground. On enquiry at the hearing of the appeal, the mother could not identify any material consequence that flowed from such an error of fact (if made) and did not explain how or why a diagnosis was necessary, having regard to the other unchallenged evidence (at [67(e)–(i)]). Sub-ground 1(c) was always misconceived and fails.
The mother argued a factual error or a specific reasons complaint in her Summary of Argument under the heading of Ground 1 which was not contained in any specific appeal ground. This was that “there was no explanation or basis given as to the finding that there was a necessary causative effect of the mother’s alleged mental health difficulties upon the children’s presentation”. The complaint may be as to a failure of the primary judge to make a finding. In any event, the complaint is not established.
Generally, a primary judge only needs to give adequate reasons for the judgment overall. Such an obligation does not ordinarily extend to giving adequate reasons for individual findings which underpin the ultimate exercise of discretion. The process of the primary judge’s reasoning in this case exposed, in chapter and verse, the pathway leading to the determination of this complained point critical to the contest between the parties, including importantly, why the case of the mother was not accepted (Bennett and Bennett (1991) FLC 92-191).
The primary judge recorded (at [14]) that “[t]he evidence of the connection between the children’s behavioural issues and the mother in the years 2021, 2022 and 2023 was not straight forward”. The reasons further record:
31 [Ms G] said the following in answer to questions from me –
“Now, you may well have answered this, but am I correct in taking away that it’s not possible to eliminate that risk in the circumstances of the mother, is that right?--- Yes.
Is it also correct to say that the amelioration of the risk is enhanced by the mother’s participation in ongoing treatment?--- Yes.”
32The above last recorded exchange seemed to me to amount to the recognition that a risk exists, founded in the mother’s underlying vulnerability and that if subjected to serious stress she is likely to exhibit the same mental ill health as she exhibited in 2021.
…
35Dr [F] identified what she said was the central risk issue in this case being risk of harm to the children in the context of the mother’s compromised mental health. Dr [F] said that the children could be impacted by parental mental illness in different ways. Those include –
(a)the children being exposed to high levels of parental stress and/or authoritative parenting;
(b)the affected parent incorporating the children into that parent’s inaccurate beliefs and acting in a way that frightens the children or causes them to become confused when it contradicts their own experiences of reality;
(c)parental verbal or physical abuse is often accompanied by paranoia; and
(d)overprotection of the children can lead to schemas about the world as being dangerous and they being vulnerable and parents can act in a dangerous manner towards the children under the guise of allegedly protecting the children.
…
38Dr [F] was cross-examined extensively. Her evidence drawn from answers she gave to questions put in cross-examination revealed the following –
(a)from January 2024 the children regressed in their behaviour in terms of emotional dysregulation;
(b)the older child’s self-soothing behaviour had settled down after the child engaged with psychologist [Ms N];
(c)the mother has underlying issues which can be triggered by various stressors;
(d)the mother exhibited signs of mental instability in 2017 when the mother smashed an item of furniture causing a piece of wood to break off then strike one of the children;
(e)on that occasion the mother was jealous of a woman with whom she believed the father previously had a romantic relationship;
(f)that incident revealed a disproportionate response and the mother persisted with the rigidity of her view;
(g)in 2017 another event occurred during which the mother accused the father of having a romantic relationship with another woman causing the mother to smash a painting on the end of a bed, such incident causing distress to the father;
(h)in 2017 the mother accused the father of fathering a child with a person called [MM] resulting in the mother demanding the father to terminate his friendship with [MM] and [MM]’s partner indicative of pathological jealousy;
(i)such pathological jealousy from a psychological perspective is often rooted in a person’s relationship template formed from early childhood from attachments to important caregivers, the experiences with which impact subsequent relationships to that person’s adulthood;
(j)the mother’s 2017 pregnancy termination represented a significant stressor and trauma;
(k)unchallenged evidence in this case from one of the mother’s high school friends was to the effect that the mother formed the view that she was being monitored in everything she did leading to the mother ending her career as a solicitor;
(l)the same high school friend gave unchallenged evidence that in 2014 the mother saw her boyfriend at the time holding hands with a female friend that led to the mother accusing her then boyfriend of infidelity;
(m)those episodes revealed the mother to be pathologically jealous, lacking in trust and suspicious of others;
(n)Dr [F] said the mother terminated her consultations with a clinical psychologist, Ms [O], after Ms [O] suggested the mother attend upon a psychiatrist;
(o)Dr [F] considered that the mother’s termination of her retainer with Ms [O] reflected the mother’s lack of insight, that she did not believe she actually suffered any difficulty and that she did not want to receive any help at the time;
(p)Dr [F] agreed that prior to November 2023 the mother did not engage with psychological or psychiatric assistance and only engaged with Dr [M] upon the court ordering the mother to do so;
(q)dialectical behavioural therapy of which relapse prevention is a component is usually targeted to individuals who struggle in the regulation of their emotions; and
(r)the mother’s narration of her hearing birds chirping was a form of delusional disorder restricted to the persecutory or jealousy type and it was more than a person’s response to a combination of stressful events in a person’s life.
(Footnotes omitted)
The primary judge accepted the submissions of the ICL (at [62(j)]) that while it was difficult to say whether the mother lacked insight about her past mental health instability, she was reluctant to acknowledge it and that the harm to the children would be magnified if she did not seek help when help is needed. The primary judge further accepted the ICL’s submission (at [62(k)]) that Dr F’s evidence concluded that the risk to the children
…may take one of four forms, namely, first, exposure of the children to high levels of parental stress, neglect or authoritative parenting, second, incorporation by the affected parent of the children into that parent’s inaccurate beliefs, third, acting in ways that might frighten the children or it might cause them confusion that the relevant parent’s behaviour contradicts the children’s own experiences of reality or it might trigger reassurance seeking by the children or fourth, overprotection that leads children to developing schemas concerning the world being dangerous and themselves being vulnerable;
The primary judge accepted the ICL’s submissions (at [62(m)]–[62(n)] and [66]) that:
(m)while the older child's self-soothing and younger child's behavioural dysregulation cannot be attributed solely to the mother's behaviour, a direct correlation exists between the deterioration of the children's behaviour and the mother's poor mental health in 2021 and 2022 then later upon the commencement of the children's unsupervised time with the mother in January 2024; and
(n)it is open to the court to find that the mother's behaviour exacerbated the impact on the children of other disruptions then occurring in the children's lives (including the breakdown of the parents' marriage and moving house) even if the mother's behaviour may not have been the sole cause of any such exacerbation.
…
66Those passages illustrated to me that there was validity in the contentions of the ICL and of the father that the mother even to this day was not willing to acknowledge her behaviour as having an impact on the children, especially in respect of the older child’s thigh rubbing behaviour and in respect of the younger child’s emotional dysregulation. The mother’s contention that “the greatest act of violence in this whole proceeding” was the father’s obtaining of an IVO against the mother thereby limiting her time with the children represents, to my way of thinking, a wholesale refusal by the mother to acknowledge that her behaviour is relevant and that the father acted protectively towards the children in setting in train the IVO procedure. It seemed to me that there was validity in the contention that the mother was unable or unwilling to subject her behaviour to close examination in relation to its impact on the children and that instead she preferred to construe the events of this case as being focused on her rather than on the children.
(As per the original)
Further the primary judge found (at [83]) that:
83…the current mental health circumstances with the older child stimming and the younger child being emotionally dysregulated is attributable at least in part to their experiences when the mother was their primary carer. Since the IVO, the father has been mainly responsible for raising the children. The mother enjoys some time with the children. That time is not of the duration the mother wishes. Nonetheless, the children have not forgotten the mother nor is she a stranger to them. To that extent, the children enjoy a relationship, of sorts, with the mother. The mother complains in her written submissions that she does not enjoy a full and rich relationship with the children as their mother. That may be the case. However, she poses a risk to the children unless and until her susceptibility to stress by reason of her vulnerabilities is fully managed by ongoing regular treatment.
The nexus between the mother’s mental health challenges and the children’s presentation is further found in the reasons (at [108] and [110]).
Ground 1 fails.
Ground 2: “The Primary Judge erred: (a) by failing to adequately or at all take into account the timing, the progression of, and the causes of the decline in the children’s health behaviour and wellbeing; and (b) in attributing that decline to the mother’s mental health issues whilst having no regard to the behaviour and mental health issues of the father and their impact upon the children.”; Ground 4: “The Primary Judge erred in: (a) finding that the children had progressed well in the primary care of the father; and (b) finding that the father had demonstrated the capacity to provide for the children’s development, psychological, emotional and cultural needs.”; and Ground 5: “Further, and/or in the alternative the Primary Judge failed to provide adequate reasons for these findings.”
The paragraphs of the mother’s Summary of Argument directed to these grounds compiled a list of complaints as to her perceptions of the father’s conduct.
The mother did not make any submissions directed to sub-ground 2(a) in her Summary of Argument or on the hearing of the appeal. It is rejected.
As to sub-ground 2(b), the mother’s Summary of Argument directed her complaint to a factual challenge of the finding (at [17]) that no mental health issues were asserted against the father. It is necessary to analyse the finding. The father was ordered on 23 November 2023 to engage with mental health support services, implementing a recommendation by Ms G. He complied with that order. The evidence of his treating psychologist, Dr NN, as to his positive functioning was unchallenged. The mother on appeal did not identify in the Appeal Book or the transcript any assertion or evidence adduced at trial as to the father encountering current mental health challenges. An error of fact is established if there is no evidence to support the finding. There was no evidence to support any other finding to that made (at [17]). Sub-ground 2(b) was always devoid of any merit.
No prospect existed to establish Ground 2.
The mother’s Summary of Argument identifies that Ground 4(a) complains as to findings that “the children had progressed well in the father’s care” and that their “presentation had improved as a result of the primary care of the father” (Mother’s Summary of Argument at [10]). The mother then illogically couples that complaint regarding the same impugned factual findings as being not reasonably open on the evidence in Ground 5, being a complaint as to inadequate reasons for the same findings, resurrecting the vexing challenges presented by the mother’s grounds of appeal.
The first contended finding alleged is not reflective of the reasons. The reasons record:
102…The father provides stability, regularity of routine and predictability of behaviour. The same cannot be said of the mother. While it must be acknowledged that her circumstances are improving compared to the events between 2021 and 2023, the mother has yet to immerse herself in the therapy contemplated by [Ms G] and Dr [F]. She must do that forthwith.
…
107…The father has cared [for] the children very well in all the circumstances. Aside from early episodes of stimming and dysregulation, the children are now settled, they are in a regular routine, they have adapted to that routine, they are protected and they are safe.
…
110…The children need stability. In the father’s care they have that. The same cannot be said when the children are in the mother’s care. The children need routine which they get in the father’s care. They need certainty – that they will get to school on time each day, that they may enjoy a calm and stable homelife, that they will not be subjected to disruptive and seemingly irrational parental behaviour and that they can enjoy an age-appropriate lifestyle as they pass through their formative years. The children are entitled to expect those things. The father provides them…
The second contended finding was not made at all. The impugned finding of fact agitated by Ground 4(b) appears to be (at [79]), being an intermediate finding that the father has demonstrated a capacity to meet the children’s developmental, psychological, emotional and cultural needs.
The mother did not identify in her Summary of Argument or oral submissions on appeal that there was no evidence to support the findings subject to complaint. The complaints by way of Ground 4 in actuality are that the evidence tends to a different conclusion, not that the challenged findings were not reasonably open on the evidence. Findings of fact are not wrong merely because an appellant can point to some countervailing evidence (Cizek & Mihov (2024) FLC 94-206). It is not enough to displace a factual finding by establishing a differing view (Fox v Percy at [17]). Ground 4 fails.
As to Ground 5, it is not established. The pathway of reasoning is amply supported by the primary judge’s acceptance that the father obtained a family violence intervention order against the mother for the protection of the children; has had care of the children since separation, including ensuring they engaged in occupational therapy and attended on a psychologist; and provides the children with stability, regularity of routine and predictability of behaviour.
Ground 3: “Further, and/or in the alternative the Primary Judge erred in his assessment of the risk to the children arising from the mother’s mental health issues.”
The mother’s Summary of Argument as to this ground does little more than promote that the primary judge ought to have accepted the evidence as to the risk (or absence thereof) she posed to the safety of the children as opined by her treating psychologist Dr M in preference to the evidence of Ms G and Dr F. During the hearing of the appeal the mother conceded that this ground was a challenge as to weight only. That said, she would not withdraw the ground. The ground fails for the same reasons as identified in sub-ground 1(b).
Ground 6: “Having concluded that the mother would not pose a risk if she faithfully participated in ongoing regular treatment for stress management, and having ordered safeguards to ensure the safety of the children and minimise that risk, the Primary Judge erred in limiting the time to be spent by the children with the mother, and by failing to provide any adequate reason for that outcome.”
The content of the mother’s Summary of Argument under the heading did not engage with the ground. The ground ought to have been rejected at that point. No objection was taken at the hearing of the appeal by the father or the ICL to permit the determination of the mother’s complaint in her Summary of Argument as to an error by virtue of the facts and terms of the orders made which tether the increasing of the mother’s time spent with the children to her attendance on a clinical psychologist.
There is no power to order the mother to undertake therapy except as a condition of a parenting order made within power (Oberlin & Infeld (2021) FLC 94-017 at [51]–[52]). The construction of the parenting orders record:
5.The children spend time with the mother during all Victorian school terms as follows –
(a)from the date of final orders, in a fortnightly rotating cycle as follows –
(i)each Wednesday from the conclusion of school/kindergarten/daycare (or 3.30pm on a non-school day) until 7.00pm;
(ii)each alternate weekend from 9.00am Saturday until 5.00pm Sunday;
(b)commencing at the end of the Victorian School Term 2 2025, in a fortnightly rotating cycle as follows but subject to paragraphs 10 and 11 of these orders –
(i)each Wednesday from the conclusion of school/kindergarten/daycare (or 3.30pm on a non-school day) until 7.00pm;
(ii)each alternate weekend, from the conclusion of childcare/school (or 3.30pm if a non-childcare/non-school day) on Friday until 5.00pm on Sunday;
(c)commencing at the end of the Victorian School Term 4 2025, in a fortnightly rotating cycle as follows, but subject to paragraphs 10 and 11 of these orders –
(i)in week 1, on Wednesday from the conclusion of school/kindergarten/day care (or 3.30 pm on a non-school day) until the commencement of school on Thursday (or 9.00am if a non-school day);
(ii)in week 2, from the conclusion of childcare/school (or 3.30pm if a non-childcare/non-school day) on Friday until 5.00pm on Sunday;
(d)commencing at the end of the Victorian School Term 2 2026, in a fortnightly rotating cycle as follows, but subject to paragraphs 10 and 11 of these orders –
(i)in week 1, on Wednesday from the conclusion of school/kindergarten/day care (or 3.30 pm on a non-school day) until the commencement of school on Friday (or 9.00am on a non-school day);
(ii)in week 2, from the conclusion of childcare/school (or 3.30 pm if a non-childcare/non-school day) on Friday until 5.00pm on Sunday;
(e)by facetime or similar, each Tuesday and Thursday that the children are not in the mother’s care, commencing at 7.00pm; and
(f)such further or other times as agreed between the parents.
…
7.Upon [Y] turning six years old, the children will spend time and communicate with the parents during the school term holidays and long summer holidays in a week about arrangement as follows –
(a)with the father, for the first week of the holidays in even numbered years and each alternate week thereafter and for the second week of the holidays in odd numbered years and each alternate week thereafter;
(b)with the mother, for the first week of the holidays in odd numbered years and each alternate week thereafter and the second week of the holidays in even numbered years and each alternate week thereafter, with changeover to occur at 12 noon every seven consecutive days until the commencement of the next school term; and
(c)with the parent in whose care the children are not in, by facetime or similar each Tuesday and Thursday at 7.00pm.
…
10.Until [Y] turns six years of age, the mother must continue to engage in psychological treatment with a clinical psychologist regularly (no less than once each fortnight) with expertise in the area of trauma and trauma response for trauma focused cognitive behaviour therapy to treat –
(a)[personality disorders/ poor mental health];
(b)trauma and trauma-response, and the impact of stress on the mother; and
(c)any other matters deemed appropriate by the mother’s treating clinical psychologist with any such psychologist treating the mother to be provided by the independent children’s lawyer (and by the mother for any subsequent psychologist treating the mother) as soon as practicable after these orders with a copy of the family report by Dr [F], the psychiatric report of [Ms G], a copy of these orders and reasons for judgment in this matter.
11. Until [Y] turns six years of age –
(a)the mother must provide the father with a written report from her treating clinical psychologist about her attendance, treatment and progress every six months, at the mother’s expense;
(b)such report must be provided by the mother’s treating psychologist directly to the father’s nominated email no less than 14 days before the children’s time with the mother is due to increase pursuant to paragraphs 5 and 7 of these orders;
(c)the children’s time with the mother pursuant to paragraphs 5 and 7 of these orders will not commence until the report is provided to the father by the mother’s treating psychologist; and
(d)the children’s time with the mother pursuant to paragraphs 5 and 7 of these orders will proceed subject to the mother’s compliance with paragraphs 10 and 11 of these orders.
(As per the original)
The mother submitted that the construction of the orders under challenge are tantamount to the divestiture of judicial power as identified by the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 (“Lainhart”). That complaint is not accepted.
Giving context to the orders:
(a)As recorded earlier in these reasons, findings were made as to the mitigation of the risk to the children’s safety having a nexus to the mother’s mental health treatment to date and prospectively (at [67(i)] and [68]).
(b)The orders reflect the recommendations of Ms G that the mother should engage in the specified ordered treatment for 12 to 18 months (Transcript 14 November 2024, p.376 line 1–47 and p.378 line 1–47).
(c)In oral submissions, the mother embraced her continued attendance on Dr M and obtaining psychological treatment on the terms opined by Ms G as a pre-requisite to her time spent with the children progressing (Transcript 28 February 2025, p.26 line 33 to p.27 line 13). On one view, as this was the position of the mother during the hearing, she is bound by her case at trial and cannot raise such an issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
(d)The primary judge raised with the parties and the ICL during oral submissions as to whether interim orders should be made to enable the mother to progress her treatment (at [45]) prior to final orders being made. The reasons record each of the parties and the ICL urging the making of final orders “that have the effect of concluding this litigation even though a period of 18 months must play out before it can be known whether improvement has been achieved in the mother’s condition based on the intense therapy these orders orchestrate” (at [115]). Each are bound by the parameters of the issues they set at trial. The primary judge identified the necessity of the parties to engage with the provisions of s 65DAAA of the Act in the event of future issues arising from the mother’s treatment or absence thereof.
Orders 10 and 11 are fundamentally different to the treatment order successfully challenged in Lainhart because the orders made in this case:
(a)Define the frequency, period and object of the mother’s engagement with the clinical psychologist;
(b)Do not require the treating clinical psychologist to opine as to whether the treatment of the mother should cease or continue (contrast to Miyajima & Mikkelson [2024] FedCFamC1A 208);
(c)Do not require the mother’s treating clinical psychologist to make decisions such that there is an abdication of judicial responsibility to the treater;
(d)Are framed to impose conditions on the increase of the mother’s time spent with the children for a finite period; and
(e)Do no more than require the treating clinical psychologist to confirm in reports that treatment has been provided.
The purpose of the facts and terms of the orders do not provide for a further forensic diagnosis of the mother. They scaffold the parenting orders with the assistance the ch 7 experts opined was necessary for relapse prevention and seek to address the core issues regarding the mother’s mental health presentation and her vulnerabilities as they impact on the children. The orders are plain, prescriptive and enforceable. If the mother elects not to comply with the orders, her time spent with the children will not increase.
Ground 6 fails.
Ground 7: “Further and/or in the alternative, the Primary Judge erred by failing to provide any or any adequate reason as to why spending only four nights per fortnight with the mother was in the best interests of the children.”
The Summary of Argument of the mother records:
21.…no reason is given why the children’s time with the mother, their original primary carer, should be limited to four nights, rather than five, six, or seven.
…
24. The orders limiting the children’s time with the mother are thus lacking in evidentiary foundation as to risk specific to the amount of time she is permitted to spend with them.
(As per the original)
The terms of the parenting orders made after the identification, evaluation, and determination of the critical issue as to the risk to the safety of the children involves the exercise of a broad discretion. As argued, this ground was simply an invitation for this Court to reach a different conclusion as to what orders were reasonable and principled.
The reasons record that the mother’s participation in clinical treatment will “go some way to providing a form of improvement in the children’s current presentation of emotional dysregulation in one child and stimming in the other” (at [74]) in circumstances where “[they] are young and in the short duration of their lives they have already endured an unacceptable amount of developmental, psychological and emotional turmoil” (at [78]). The children’s presentation is in part a product of their experiences with the mother (at [83]). This in turn is coupled with the mother’s lack of parental insight (at [94)]) and the children’s need for stability, regularity of routine and predictability of behaviour (at [102]) in their formative years that the father provides them and the mother does not (at [110]). This led the primary judge to adopt a cautious “slow, incremental and steady” approach, accepting spend time arrangements as sought by the father and the ICL as promoting the best interests of the children (at [112]).
The primary judge’s reasons reasonably explain why the father’s and the ICL’s regime as to time spent were preferred to that of the mother. Ground 7 is not made out.
Disposition of the Parenting Appeal
None of the grounds in the parenting appeal have merit. It will be dismissed.
The property appeal
The amendments to s 79 of the Family Law Act 1975 (Cth) (“the Act”), pursuant to the Family Law Amendment Act 2024 (Cth), commenced on 10 June 2025. As the property dispute was determined before that date, the provisions of the Act prior to the amendments are applicable when considering the Amended Notice of Appeal.
The mother grouped grounds 8, 9 and 10 in her Summary of Argument notwithstanding that they self-evidently contended disparate categories of appellate error and addressed a raft of topics.
Ground 8: “The Primary Judge erred in his assessment of the respective contributions of the parties by: (a) failing to take into account the greater initial contributions made by the mother; (b) failing to take into account the greater financial contributions made by the mother to the purchase by the parties of the former matrimonial home; (c) failing to take into account the financial contributions by the mother in depositing a total of $40,000 into offsetting accounts in relation to the mortgage registered on the Title to the former matrimonial home; and (d) failing to take into account adequately or at all the contributions made by the mother to the welfare of the family including contributions as the primary carer for the children and as the principal homemaker.”; Ground 9: “Further, and/or in the alternative, the Primary Judge failed to provide any adequate reasons for his assessment of the respective contributions of the parties.”; Ground 10: “Further and/or in the alternative, the Primary Judge, having agreed that the mother’s father’s gift of $400,000 must be brought into account, the Primary Judge failed to provide any reasons as to how that gift was taken into account.”
The grounds of appeal that were the subject of discrete submissions supporting each ground are:
11.When considering the relevant factors in s. 75(2) of the Family Law Act 1975 (Cth) the Primary Judge failed to take into account adequately or at all:
(a) the income disparity of the parties; and
(b) the duration of the marriage and the extent to which it has effected the earning capacity of the mother.
12. Further, in taking into account that since separation the father has made the mortgage repayments in respect of the mortgage registered on the Title of the former matrimonial home, the Primary Judge erred by failing to take into account the fact that the father has had the benefit of the occupation of that home whilst the mother has not had that benefit.
13. Having concluded that an equal division of the parties’ assets was just and equitable, the Primary Judge then failed to make orders giving effect to such a division.
14. The Primary Judge erred by failing to address and determine the application by the mother that the father pay the mother’s costs for [DD Family Services] Supervision and the two reports issued by [DD Family Services] Supervision for these proceedings totalling $15,709.
(Underline emphasis removed) (Bold emphasis added)
The seven haphazardly constructed appeal grounds argued by the mother were either ignored by the mother in her Summary of Argument or imprecisely supported by commentary, obscuring some essential points.
This is an appeal by way of a rehearing, the procedure of which requires the correction of material error when it is identified by an appeal court (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]; Warren v Coombes (1979) 142 CLR 531 at 552–553) even if the error is not the subject of clear complaint by the appellant. As will be explained, threads of the grounds of the property appeal, other complaints made in the mother’s Summary of Argument not supported by the grounds, and other obvious errors not the subject of complaint or mentioned by the mother that cannot be ignored, establish an inadequacy of reasons that occasions a miscarriage of justice in the adjustment of the parties’ property.
The construction of a balance sheet identifying the property of the parties presented not insignificant challenges for the primary judge. Both parties asserted the notional add back of property against the other which had existed but had since been exhausted and no longer existed at the time of the trial. The reasons record:
119In final addresses, the modest nature of the property that fell to be divided was revealed.
120 Both parties agreed that the relationship was of a six year duration.
121The parties also agreed that superannuation would be split so that the amount of $69,483 was to be paid to the wife from the husband’s accumbered fund in addition to her retaining the amount in her fund.
122Certain items were agreed on a list of assets provided for final addresses. In no way could that document be described as a “balance sheet”. The items on the so-called balance sheet were –
(a) balance of sale proceeds for the former family home at [Suburb BB] Victoria held by [S Lawyers]
$589,155(b) part property settlement – early release of 50% of deposit of [Suburb BB] Property $87,648 to the wife and $87,648 to the husband (c) proceeds of sale of the husband’s investment property in [Suburb EE]
$152, 344(d) proceeds of sale of the wife’s [Suburb FF] property $265,128 (e) shares held by the wife in [L Company] $5,086 (f) 2011 [Motor Vehicle 1] $12,590 (g) 2007 [Motor Vehicle 2] $1,300 (h) e-bike […] $8,500 TOTAL NON-SUPERANNUATION ASSETS $1,209,399
Superannuation
123Several funds were said to be relevant to the parties’ superannuation. No dispute emerged about the total of the value of the funds in each. They were as follows –
(a) the husband’s [Superannuation Fund 1] fund, the balance as at 30 October 2024 being
$394,049(b) the wife’s [Superannuation Fund 1] fund, the balance as at 8 November 2024 being
$19,248(c) the wife’s [Superannuation Fund 2] fund, the balance as at 8 November 2024 being
$203,033AGREED TOTAL SUPERANNUATION $616,330
124The parties agreed that superannuation would be split in such manner that the wife would receive the super entitlements in her name, plus $69,483 from the husband’s super entitlements, with the husband retaining the balance.
125Therefore, the only asset to be divided was the remaining amount from the sale of the former matrimonial home, namely $589,155.
(Footnotes omitted)
The primary judge, unsurprisingly and unchallenged on appeal having regard to the fact and terms of the agreed superannuation splitting order, adopted a two-pool approach to the assessment of contributions and any adjustments thereto, one being as to superannuation property and the other being as to non-superannuation property (at [129]).
The evidence adduced by each party as to their respective direct financial contributions at cohabitation and the use made of those contributions was less than optimal. The reasons record:
135In making the observations that follow, it must be borne in mind that the parties’ proofs and verification of all aspects of the property component of this case was particularly defective. Documents to otherwise demonstrate such things as who paid what to whom and when, who were parties to contracts to purchase land, who sold what parcel of land and when, how funds were applied and what was left over were addressed in this case only in the most rudimentary and incomplete manner. That made the task of following the narrative less than lineal and it also led to asserted amounts being difficult to verify. It was simple enough for the parties to depose to and produce bank statements. That was not done for the most part so I was left with unverified assertions about the way large sums of money were applied.
(As per the original)
The mother contributed at cohabitation an interest in a unit at Suburb FF. The primary judge said:
The [Suburb FF] unit
136The starting point in the property analysis is an examination of parties’ assets at the commencement of the relationship. The wife owned a unit in [Suburb FF], which for anonymity purposes I shall simply describe as the [Suburb FF] unit. She did not depose to the date when she bought the [Suburb FF] unit. She did not depose to its purchase price, how that purchase price was funded nor, in particular, how much was funded by a mortgagee, although the identity of the mortgagee was [HH Bank]. She did not depose to monthly instalments of the mortgage.
137The wife deposed to effecting the sale of the [Suburb FF] unit on 16 March 2022 for $400,000.
138From the sale proceeds of the [Suburb FF] unit the wife deposed to applying $20,000 to a joint offset account with [HH Bank] and another $20,000 to an offset joint account with [HH Bank] variable rate mortgage for the former matrimonial home.
139The wife deposed to paying legal fees and thereby exhausting all funds generated from the sale of the [Suburb FF] unit. The important point is that no sum should appear on the balance sheet in respect of the [Suburb FF] property as it is not an existing asset. The property has been sold and the proceeds spent.
140The husband asserted that the wife drew down $155,000 from the mortgage (his words) in respect of the [Suburb FF] unit. No verification was given either as to the amount or circumstances surrounding any such alleged drawdown. In the absence of information to verify his assertions about that sum of $155,000 I have not been able to accord the assertion any particular validity.
(As per the original)
In 2021, the mother’s father gifted her $400,000 to be applied to the purchase of the Suburb BB home (at [117] and [152]).
The father contributed at cohabitation an interest in a unit at Suburb EE. The reasons record:
The [Suburb EE] apartment
141Prior to cohabitation, the husband had acquired an apartment in [Suburb EE]. He did not say when he acquired it, for how much, whether the purchase price was settled with mortgage finance, how much monthly repayments were, whether the husband was a co-owner or whether he was the sole registered proprietor and what his equity was in that parcel of real estate when cohabitation commenced. No details of his acquisition of that property were given, especially as to documents. No details about financing were given, especially as to the identity of the mortgagee and the monthly sum due to it.
142The husband deposed to selling the [Suburb EE] apartment in October 2020. He did not say what the sale price was, how much was paid to agents, nor how much the deposit was and to whom it was paid especially whether it was to be held pending the conclusion of this litigation. However, he did say he retained the sum of $152,344 from the sale proceeds. He deposed to applying that amount towards his own legal fees and towards living expenses for himself and the children. He did not say how much was applied to either, however. The tenor of the husband's evidence is that the entirety of the sum of $152,344 was exhausted.
(As per the original)
The sale of the father’s unit at Suburb EE was completed in late 2020 before the parties completed the purchase of their home at Suburb BB in mid-2021 (at [143]). The sale of the mother’s unit at Suburb FF occurred in the following year.
The reasons go on to record:
The Suburb BB property
144So far as the funding of the purchase price was concerned ($2,210,000), the evidence was equivocal for being unverified by documents and in respect of specific amounts. That said, the parties both agreed the following amounts were applied towards the acquisition of the former matrimonial home –
(a) the wife which included the redraw from the mortgage over the [Suburb FF] unit $606,000 (b) the husband $160,000 (c) from mortgagee funds $1,600,000 $2,366,000
…
(As per the original)
The Suburb BB property was sold in 2024 for $2,310,000 (at [147]).
Each of the parties in their summaries of argument on appeal stated that they agreed as to the notional adding back of property that no longer existed to the balance sheet, identifying it and its values as their property at trial. A reading of the transcript of submissions made by the father at trial supports the agreed position. The submissions of the mother, who was not represented on the final day of the trial, are opaque on this subject matter. In any event, the mother on appeal contended that:
(a)The transcript of the trial supports the impression that notional add backs would be included in the pool of property for adjustment;
(b)The submissions made by the parties as to the contribution findings sought and the adjustments thereto assumed the inclusion of notional add backs; and
(c)The balance sheet recorded (at [122]) includes them.
The reasons then progress to determine the findings as to the property of the parties available for adjustment, the contributions findings and the adjustment thereto, in five paragraphs:
CONTRIBUTIONS BASED ASSESSMENT
149As is readily apparent from the foregoing, the only assets presently in existence is the balance of the sale price of the former matrimonial home, namely, $589,155 currently held in trust, the [Motor Vehicle 1], the [Motor Vehicle 2] vehicle, an e-bike, plus shares. The parties agreed that each item had an agreed value, namely –
(a) funds in trust $589,155 (b) shares to be retained by the wife $5,086 (c) the [Motor Vehicle 1] car to be retained by the husband $12,590 (d) [Motor Vehicle 2] car to be retained by the wife $1,300 (e) e-bike to be retained by the husband $8,500
150The main arena of dispute was in the percentage by which non-superannuation assets was to be divided (ie, the amount in trust), the parties agreeing that the wife would retain the shares ($5,086) and the [Motor Vehicle 2] car ($1,300), the husband would retain the [Motor Vehicle 1] car ($12,590) and the e-bike ($8,500).
PERCENTAGE DIVISION
151On behalf of the husband Mr Hutchings contended that contributions should be assessed in such manner that 60% is in the range of acceptable outcomes in favour of the wife and that 40% to the husband is in the range of acceptable outcomes. He submitted that the percentage assessed in favour of the husband must be increased by a s 75(2) loading of 10% to reflect –
Submissions were sought as to whether s 79(3)(a)(i) of the Act, mandating the identification of the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them at the time of trial in a balance sheet, permitted as part of that identification items notionally added back being property which no longer existed.
Although the mother sought the inclusion by way of adding back the notional property at items 7 to 10 inclusive of the agreed balance sheet, she conceded that this was counterintuitive to the construction of s 79(3) of the Act. She accepted that notional property cannot be divided or adjusted because it no longer exists.
The father submitted that s 79(3) “codified existing principle” as to the notional adding back of property that no longer existed, such that the section does not displace a discretion as to whether the notional adding back of property at items 7 to 10 inclusive ought to remain included in the balance sheet as if it was property which still existed at the time of the trial. His submission was anchored in the Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth), identifying that the amendments to s 79 of the Act sought to codify “existing case law principles”. While not expressed by him in such terms, as we understood his submission, the principles he identified were those underscoring the reasoning in Omacini, rather than those expressed by the Full Court in Trevi. The father conceded that the Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth) is silent on the express topic of add backs. Although not identified by the father, each of the Addendum to the Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth) and the Supplementary Explanatory Memorandum. Family Law Amendment Bill 2024 (Cth) do not, by or in themselves, refer to the adding back of property that no longer exists.
The submissions of the father are not accepted.
Statutory interpretation focuses on the plain and ordinary meaning of the words in the section. The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified and only that existing property is to be divided or adjusted.
This single conclusion is reinforced, when read in the context of s 79, not to permit more than one potential meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).
Section 79(4) is headed “[c]onsiderations relating to contributions”. Sections 79(4)(a)-(c) encompasses considerations that form part of the history of contributions, including the fact of the legal and equitable interests in property disposed of, and the use and application of the funds produced from the disposal, up until the date of assessment, being the date of trial.
Section 79(5) is headed “[c]onsiderations relating to current and future circumstances”. Section 79(5)(d) directs consideration as to whether a party has engaged in wastage of property or financial resources and its impact on the financial circumstances of the parties at the time of the assessment, being the date of trial, and prospectively, being one of the categories of notional add back identified in Omacini. Section 79(5)(n) directs consideration to the extent to which each party has contributed to the property or financial resources of the other party at the time of the trial and prospectively. This could encompass interim or partial property adjustments or payments by way of litigation funding. Section 79(5)(v) replicates s 75(2)(o) prior to the amendment of the section. Longstanding authority has not read down the scope of the considerations falling within that sub-section, described in the Explanatory Memorandum as a “catch all’ provision, including but not limited to enabling the current and future considerations of the fact and impact of property that has been the subject of predisposition prior to hearing, being a category of notional add back identified in Townsend and Omacini, or the expenditure of property on legal fees.
So that it is clear, s 79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage. For the avoidance of doubt, it is open when consideration is given to s 79(2) of the Act, to consider the matters in s 79(3)(a) and s 79(3)(b), together with those in s 79(4) and s 79(5) and conclude it is not just and equitable to make any order (Cosola & Moretto (2023) FLC 94-143).
The holistic approach in assessing and determining contributions and adjustments thereto (Jabour & Jabour (2019) FLC 93-898 (“Jabour”); Horrigan & Horrigan [2020] FamCAFC 25 (“Horrigan”)) remains applicable. Each of the considerations, by either s 79(4) or s 79(5), requires engagement with the circumstances of the disposal of property, the value it achieved, and its use and application being considered and weighed to achieve the mandate of justice and equity that permeates s 79 of the Act.
As notional property does not exist, it cannot be identified to form part of the balance sheet recording the current items of the parties’ property. Items 7 to 10 inclusive will be removed from the balance sheet and considered in the contribution findings or the adjustments thereto.
We find that the existing legal and equitable rights and interest of the parties in property and their existing liabilities available for adjustment are:
Ownership Description Agreed Value ($) ASSETS 1 Joint Mother’s 50 per cent share of the proceeds of sale of the [Suburb BB] property 294,577.50 2 Joint Father’s 50 per cent share of the proceeds of sale of the [Suburb BB] property 294,577.50 3 Mother Shares 5,086 4 Mother [Motor Vehicle 2] car 1,300 5 Father [Motor Vehicle 1] car 12,590 6 Father E-bike 8,500 Total 616,631
SUPERANNUATION Member Name of Fund/Description Agreed Value ($) 11 Father [Superannuation Fund 1] (minus the $69,483 split to the mother) 324,566 12 Mother [Superannuation Fund 1] 19,248 13 Mother [Superannuation Fund 2] 203,033 14 Mother Split received from the father’s superannuation 69,483 Total 616,330 Total non-superannuation and superannuation property 1,232,961
We are satisfied that the requirement of justice and equity will be achieved as part of the adjustment process pursuant to s 79 of the Act having regard to:
(a)The period of the relationship of the parties and they now living apart;
(b)The joining of the financial resources of the parties to acquire the Suburb BB property and the necessity to resolve the dispute as to the distribution of the funds produced from its disposal; and
(c)The contributions and other factors identified below.
The agreement of the parties not to disturb the superannuation splitting order made on 31 March 2025 and to re-exercise discretion as to the non-superannuation property pool directs the assessment of contributions as against that pool of property only, with the further consideration of that contribution finding, and the agreed superannuation splitting order, in the considerations by way of s 79(5) together with the other relevant considerations identified in that section.
As to contributions, we find:
(a)At the time of cohabitation, the mother directly contributed shares in the value of $5,746, savings of $6,257, her interest in the Suburb FF unit subject to a mortgage and superannuation of $79,704. The mother at that time had an annual income of $110,000.
(b)Upon the sale of the Suburb FF unit for $400,000, the mother:
(i)applied $606,000 to the Suburb BB property. This included $400,000 received from her father in 2021;
(ii)applied $20,000 to a joint offset account for the Suburb BB mortgage and another $20,000 to a different offset account; and
(iii)retained the benefit of $265,128 from the Suburb FF sale proceeds after separation which was expended on legal fees.
(c)The father contributed at the commencement of cohabitation unquantified savings, his interest in the Suburb EE apartment subject to a mortgage and a quantity of superannuation. The evidence does not permit a finding as to the value of the father’s superannuation or his savings at that time. The father’s annual income at that time was $130,000.
(d)The evidence does not permit a finding as to the sale price or the amount received after discharge of the mortgage and selling costs on the father’s disposal of the apartment in October 2020. He applied $160,000 from the proceeds to the acquisition of the Suburb BB property and retained $152,344 from the sale applied after separation to unquantified legal fees and living expenses for himself and the children.
(e)The sources of funding of the Suburb BB property are agreed by the parties as follows:
(a) the mother $606,000 (b) the father $160,000 (c) from mortgagee funds $1,600,000 Total $2,366,000 (f)During the relationship, the parties had one joint bank account. This account was used to pay for the family’s expenses. The parties otherwise maintained separate bank accounts.
(g)As between the parents, the mother was primarily responsible for the day-to-day care of the children from when they were born until separation, notwithstanding her mental health challenges. The mother remained at home after the birth of the children while the father attended work. The mother returned to work on a part-time basis after 10 months of maternity leave following the birth of the older child in early 2019. The mother continued to have primary carer responsibility for the older child on the days she did not work. She returned to full-time work on 30 March 2020. During the COVID-19 lockdowns both the mother and the father worked from home and shared care of the older child. The mother took 12 months of maternity leave following the birth of the younger child in early 2021 while the father remained working full-time. The mother returned to work on a part-time basis in February 2022. The mother was scheduled to return to full-time work in July 2022. In November 2022 the mother changed jobs so she could continue working part-time whilst caring for the children. As between she and the father, the mother undertook majority of the homemaking.
(h)The contribution by the mother of $400,000 sourced from her father late in the relationship and its use generating the lion’s share of the equity realised from the Suburb BB home, attracts significant weight (see Pierce & Pierce (1999) FLC 92-844).
(i)The mother’s contention that she was responsible for the higher sale price of the Suburb BB property, being $2,310,000 as opposed to $2,250,000, is not supported by evidence attracting weight and is not accepted.
(j)The mother has been renting since March 2023. The father, while having the benefit of occupation with the children, paid the mortgage on the Suburb BB property from separation until July 2024 when a moratorium was granted.
(k)The mother and the father each received $87,648 as a partial property settlement from the proceeds of sale of the Suburb BB home. Of those funds, the mother paid $79,473 to her litigation funding loan and the father paid $27,000 to his litigation funding loan.
(l)The mother received $352,776 from the sale of her pre-marriage property and from the proceeds of sale of the Suburb BB property and the father received $239,992 from the sale of his pre-marriage property and from the proceeds of sale of the Suburb BB property. The gross value of funds received by the parties from the proceeds of sale of real properties that no longer exist is $592,768. That value, subject to the evidence, may be material in considering contributions up until the time of assessment, dependent on the use made by each party of the funds received coming within the ambit of s 79(4)(a)–(c) factors.
(i)The mother applied $344,601 of the funds of $352,776 she retained or received to pay legal fees. The mother did not submit, nor do we accept, that the use of the funds to pay legal fees would equate to a contribution of those funds. She alone benefited from these expended funds. This use and application of property has consequential effects on the assessment of current circumstances, rather than being considered as a negative contribution (Antmann & Antmann (1980) FLC 90-908). This in turn directs consideration of this use and application of property that did exist but no longer does away from the history of contributions and to consider and weigh its impact on the current circumstances of the parties as envisaged by s 79(5) of the Act.
(ii)The father used at least $27,000 of the funds he retained or received to pay legal fees. The inadequacy of his evidence as to any further particulars as to what remaining portion of the $239,992 he received was applied to legal fees and what portion was applied to the living expenses of he and the children also directs against consideration of his application of the funds he received as part of the history of contributions up to the date of assessment.
(iii)Justice and equity are shaped from the particular circumstances of each case. These matters conclude that the use and application of the $592,768 sourced from the sale of real properties that no longer exist ought to be taken into account by way of s 79(5) as a consideration of the current financial circumstances of the parties.
(m)The children have lived with the father since the implementation of the family violence intervention order on 21 February 2023. The mother spent time with the children as regulated by the orders. Orders made on 4 October 2024 directed the parties to be equally responsible for the costs of the DD Family Services Supervision. There is an absence of evidence that the father paid his share of this expense. The mother has paid $15,709 to the supervising company.
(n)The mother has paid child support as assessed since separation. She currently pays child support to the father of $988 a month.
(o)The mother was responsible for reducing the Centrelink debt, incurred for the benefit of both of the parties, from $39,444 to $21,994.89.
In the event the balance sheet did not include notional property that no longer exists, the mother sought a contribution finding as to the non-superannuation property pool of 70 per cent in her favour and 30 per cent to the father. In that event, the father sought a finding of 60 per cent to the mother and 40 per cent in his favour.
The proper approach to the assessment of contributions is well established. It is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment (Jabour and Horrigan). When engaging in such holistic assessment, all contributions must be weighed collectively and not by way of compartmentalising one against another or the remainder.
Taking into account all the contributions identified in these reasons on re-exercise, contributions to the non-superannuation pool are assessed as favouring the mother as to 70 per cent and the father as to 30 per cent. This will see a disparity between the mother and the father in dollar terms that equates to $431,642 to the mother and $184,989 to the father, a difference of $246,653.
As to s 79(5) factors, we find:
(a)The father is in good health. The mother lives with the mental health challenges recorded earlier in these reasons.
(b)The father’s income is in the range of $250,000 including superannuation. The mother’s income is in the range $150,000 including superannuation. The mother’s income earning capacity has been impacted upon by her breaks in employment historically and then working part-time. Both parties have the capacity to work full-time in the future.
(c)The non-superannuation property of the parties the mother will receive by way of the contribution findings is more than twice the value of that property when compared to the father, albeit that the value of the pool is modest. The split of the superannuation property of the parties’ results in the father having $32,802 greater superannuation than the mother. He has greater future capacity to accumulate superannuation than the mother having regard to his superior income.
(d)The mother retained or received $352,776 from the proceeds of sale of real properties, being $112,784 from this category of sources more than the father, who retained or received $239,992. Not all the funds he received were for his own benefit by paying legal fees, but the absence of satisfactory evidence as to the amount of the funds he spent on living expenses for he and the children, including some particularity of these expenses and the period over which these funds were exhausted, generates challenges as to the weighing of this factor in his favour except as to the consideration of the difference in the value of the funds that have been expended that weighs in his favour.
(e)The mother’s paid Centrelink debt will be equally shared when it is established it has been paid.
(f)The father will continue to have the primary ongoing care of the children. The mother’s time spent with the children is anticipated to increase provided she complies with her engagement in clinical psychological treatment. The mother will meet the costs of this treatment. No evidence was identified as to what would be appropriate housing arrangements for the children.
(g)There is no suggestion that the mother will not continue to pay child support as assessed.
(h)Each party enjoys a reasonable standard of living. Neither has an obligation to support any other person other than the children.
The mother sought no adjustment to the contribution finding on consideration of the s 79(5) factors if her contended contribution finding was achieved. The father, if his contended contribution finding was achieved, sought an adjustment of 10 per cent in his favour from that contribution finding.
A holistic consideration of all the matters raised warrants a modest adjustment from the contribution findings as to the non-superannuation pool of 2.5 per cent in favour of the father. In dollar terms, this is an adjustment to the father of $15,415, a difference of $30,830.
Accordingly, the mother will receive 67.5 per cent of the non-superannuation property being $416,226 and the father will receive 32.5 per cent being $200,405. The superannuation property has already been adjusted.
The mother currently has:
Ownership Description Agreed Value ($) ASSETS 1 Mother’s 50 per cent share of the proceeds of sale of the [Suburb BB] property 294,577.50 3 Shares 5,086 4 [Motor Vehicle 2] car 1,300 Total 300,963.50
For the mother to achieve her entitlement of the non-superannuation property, the father must pay her $115,262.50. This will result in her receiving $416,226 by way of the non-superannuation property. She will additionally have superannuation as follows:
SUPERANNUATION Member Name of Fund/Description Agreed Value ($) 12 [Superannuation Fund 1] 19,248 13 [Superannuation Fund 2] 203,033 14 Split received from the father’s superannuation 69,483 Total Superannuation 291,764
The mother will then have $707,990, or 57.5 per cent, of the superannuation and non-superannuation property.
After payment to the mother of $115,262.50, the father will have:
Ownership Description Agreed Value ($) ASSETS 2 Father’s 50 per cent share of the proceeds of sale of the [Suburb BB] property 294,577.50 5 [Motor Vehicle 1] car 12,590 6 E-bike 8,500 Sub Total 315,667.50 Less payment to the mother 115,262.50 Total 200,405
SUPERANNUATION Member Name of Fund/Description Value ($) 11 [Superannuation Fund 1] (minus the $69,483 split to the mother) 324,566 Total 324,566
The father will then have $524,971, or 42.5 per cent, of the superannuation and non-superannuation property. By way of cross check, the value of the differential in favour of the mother is $183,019.
The father will be ordered to pay $115,262.50 to the mother within 28 days. An order will be made by consent that the parties equally share the liability for the mother’s Centrelink debt. We find that this conclusion is just and equitable.
COSTS
As the property orders which have led to the appeal are errors of law, it is appropriate to grant the mother and the father a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the property appeal.
The father sought that the mother pay the costs of the parenting appeal in the fixed sum of $7,500, being broadly half of his scale costs of both the parenting and property appeal. The ICL sought that the mother pay costs fixed in the sum of $3,865. The mother opposed the making of any order that she pay the costs of the father or those of the ICL.
The relevant principles as to costs are well settled. While the starting position established by s 114UB(1) of the Act is that each party pays their own costs, s 114UB(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 114UB(3) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
The father and the ICL correctly submitted that the mother was wholly unsuccessful in the parenting appeal. The ICL further submitted that properly advised that appeal ought not to have been brought. Both submissions have merit, as does the observation that the unnecessary challenges presented by the mother’s haphazard conduct of the parenting appeal also increased costs.
The mother’s submissions focused on her contended difficult financial circumstances. Her contended impecuniosity, without more, is not a sufficient reason for depriving those opposing the parenting appeal of their costs. While the circumstances justify an order for costs on that appeal, the value of the property of the parents and the income superiority enjoyed by the father ought to reflect a reduction in the quantum of costs of his modest costs sought, to be reduced to $5,000. The diffidence in the value of costs sought by the ICL reflects modesty in the value of the participation of the ICL in the determination of the parenting appeal. It is just that the mother pay within 28 days the fathers costs fixed at $5,000 and the ICL’s costs fixed at $3,865.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Williams, Altobelli and Campton. Associate:
Dated: 23 July 2025
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