FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122
File number MLC 6309 of 2023 Judgment of WILSON J Date of judgment 31 March 2025 Catchwords FAMILY LAW – PARENTING – application for parental responsibility by the mother – competing application for parental responsibility by the father – children under the primary care of the father – mother suffers from poor mental health – mother an unacceptable risk to the children – father granted parental responsibility – mother to spend a gradual increase in time with the children on condition she undergoes psychological treatment.
FAMILY LAW – PROPERTY – small pool the net assets of which are divided as to 50% to the mother and 50% to the father.
Legislation Family Law Act ss 4AB, 60CC, 75, 79 Cases cited Blandford & Esmore [2022] FedCFamC1A 67
Briginshaw v Briginshaw (1938) 60 CLR 336
C & C [2005] FamCA 429
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Dickons v Dickons (2012) 50 Fam LR 244
Galea v Galea (1990) 19 NSWLR 263
Goodridge v Beadle (2017) 57 Fam LR 425
Harris v Caladine (1991) 172 CLR 84
In the Marriage of Ahmad (1994) 18 Fam LR 514
In the Marriage of Gill (1984) 9 Fam LR 969
In the Marriage of McMahon (1995) 19 Fam LR 99
In the Marriage of Myerthall (1977) 3 Fam LR 11, 324
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570
In the Marriage of Wardman & Hudson (1978) 5 Fam LR 889
In the Marriage of Waters (1981) 6 Fam LR 871
In the Marriage of Zappacosta (1976) 2 Fam LR 11, 214
Isles v Nelissen (2022) 65 Fam LR 288
Lang v The Queen (2023) 278 CLR 323
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mallet & Mallet (1984) 156 CLR 605
Honeysett v The Queen (2014) 253 CLR 122
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Wagstaff v Wagstaff (2022) 65 Fam LR 461
Zagari & Habib [2010] FamCAFC 159Division Division 1 First Instance Number of paragraphs 175 Date of last submission 28 February 2025 Date of hearing 11, 12, 13, 14 and 15 November 2024 and 28 February 2025 Place Melbourne Counsel for the applicant Mr E (11, 12, 13, 14 and 15 November), litigant-in-person (28 February 2025) Counsel for the respondent Mr T. Hutchings Solicitor for the respondent Blackwood Family Lawyers Counsel for the independent children’s lawyer Ms J. Swann Solicitor for the independent children’s lawyer Barbayannis Lawyers ORDERS
MLC 6309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SHINOHORA
Applicant
AND MR SHINOHARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
31 MARCH 2025
THE COURT ORDERS THAT –
PARENTING
1.All previous parenting orders are discharged.
Parental responsibility and living arrangements for the children
2.The father have sole parental responsibility and decision-making responsibility about major long-term…
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- Case
- [2025] FedCFamC1F 122
- Decision Date
CaseChat Overview and Summary
After thorough consideration, the court found that the father's proposed orders, supported by the Independent Children's Lawyer, were appropriate. The court concluded that Ms Shinohara did pose an unacceptable risk to the children due to her mental health condition. Consequently, Mr Shinohara was granted sole parental responsibility for the children, with Ms Shinohara to have a gradually increasing amount of time with the children, contingent upon her undergoing psychological treatment. The court also addressed the division of the couple's property, ordering an equal split of the net assets from the sale of their former matrimonial home, superannuation, and other assets.
The final orders mandated that Mr Shinohara have sole parental responsibility for major long-term decisions about the children, with specific provisions for joint decision-making in certain circumstances. Ms Shinohara was to spend a progressively increasing amount of time with the children, subject to her compliance with psychological treatment and reporting requirements. Special occasions and communication arrangements were also detailed, alongside provisions for education, health, and travel. The court emphasised the need for respectful communication between the parents and prohibited them from discussing the proceedings with the children or in their presence. The orders also included injunctions against certain actions, such as denigrating the other parent or questioning the children about the proceedings.
Orders
Orders of the court
MLC 6309 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MS SHINOHORA
Applicant
AND
MR SHINOHARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
31 MARCH 2025
THE COURT ORDERS THAT –
PARENTING
1. All previous parenting orders are discharged.
Parental responsibility and living arrangements for the children
2. The father have sole parental responsibility and decision-making responsibility about major long-term decisions for the children of the marriage, X born 2019 and Y born 2021 (collectively known as “the children”) on condition that when a long term issue arises –
(a) the father must contact the mother in writing and provide his views about the issue;
(b) the parents must make a genuine effort to come to a joint decision about the issue;
(c) if no agreement is reached between the parents, then, within seven days, the father will make the final decision about the issue and advise the mother in writing of the decision; and
(d) if an urgent decision is required in an emergency, the father will not be required to consult with the mother and the father will have sole parental and decision-making responsibility for the decision.
3. The father will keep the mother informed about all major long-term decisions for the children.
4. The children live with the father.
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.
6. The usual fortnightly arrangement will continue during all Victorian school terms and Victorian school holidays until Y turns six years old.
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.
8. For the purpose of these orders, school term holidays and long summer holidays will start from the conclusion of school on the last day of the term and end on the first day of school at the start of the next school term.
9. Following term holidays and the long summer holidays, the fortnightly school term arrangements will resume in the same pattern that would have occurred had the fortnightly arrangements continued throughout the holiday periods.
Ongoing professional treatment
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;
(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.
Special occasions
12. Notwithstanding any other provision, the children will spend time with each of the parents on special occasions as agreed between them in writing and in default of agreement, as follows –
(a) for each of the children’s birthdays, if the children are not otherwise spending time with a parent on that day, with that parent from the conclusion of childcare/school until 7.00pm if a childcare/school day, or from 10.00am to 3.00 pm if a non-childcare/non-school day;
(b) on the mother’s birthday, if the children are not already in her care, from the conclusion of childcare/school (or 9.00am if a non-childcare/non-school day) until the commencement of childcare/school the following day (or midday if a non-childcare/non-school day);
(c) on the father’s birthday, if the children are not already in his care, from the conclusion of childcare/school (or 9.00am if a non-childcare/non-school day) until the commencement of childcare/school the following day (or midday if a non-childcare/non-school day);
(d) on Mother’s Day, if the children are not already in the mother’s care, from 5.00pm on the Saturday preceding Mother’s Day until the commencement of childcare/school on the Monday immediately following Mother’s Day (or midday if a non-childcare/non-school day);
(e) on Father’s Day, if the children are not already in the father’s care, from 5.00pm on the Saturday preceding Father’s Day until the commencement of childcare/school on the Monday immediately following Father’s Day (or midday if a non-childcare/non-school day);
(f) during the Easter period –
(i) in even numbered years, with the mother from 3.00pm Easter Saturday until midday Easter Sunday, and with the father from midday Easter Sunday until 3.00pm Easter Monday;
(ii) in odd numbered years, with the father from 3.00pm Easter Saturday until midday Easter Sunday, and with the mother from midday Easter Sunday until 3.00pm Easter Monday;
(g) for Christmas –
(i) in even numbered years, with the mother from 3.00pm Christmas Eve until midday Christmas Day and with the father from midday Christmas Day until 3.00pm Boxing Day; and
(ii) in odd-numbered years, with the father from 3.00pm Christmas Eve until midday Christmas Day, and with the mother from midday Christmas Day until 3.00pm Boxing Day.
Communication
13. The children are at liberty to communicate with the parent that they are not in the care of by telephone and/or video call at any reasonable time that they request, and the parent that has the care of the children must facilitate the communication.
14. The parents will communicate about the children in writing whenever possible and must communicate in a civil, respectful and child focused manner at all times.
15. Each parent will provide the other parent with no less than 14 days’ notice of any proposed change of address and each parent will keep the other parent informed as soon as practical of any change to their telephone/mobile number and email address.
Changeover
16. For changeovers that do not occur at the children’s childcare/school, changeovers shall occur by way of the mother collecting the children from the father’s residence at the commencement of the children’s time with the mother, and the father collecting the children from the mother’s residence at the conclusion of the children’s time with the mother.
Education
17. The father is at liberty to enrol the children into H School (with X to commence grade Prep in 2025), and the father is at liberty to provide a sealed copy of these orders to H School to give effect to this order –
(a) in the event H School requires the mother’s signature to give effect to the children’s enrolment pursuant to these orders, notwithstanding paragraph 18 of these orders and the order providing the father with sole parental and decision‑making responsibility for the children herein these orders, the mother must forthwith do all acts and things necessary and sign all documents required by H School; and
(b) if the mother fails to comply with a request from H School to sign documents to give effect to paragraph 18 of these orders within seven days, then the father is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to sign and execute all documents on behalf of the mother required for the implementation of paragraph 18 of these orders, including but not limited to an enrolment form for the children.
18. Each parent is entitled to receive all kindergarten/school newsletters, notices, reports, photograph order forms and other documents for the children ordinarily provided to parents and to the extent it may be necessary, each parent will authorise the children's kindergarten/schools to provide such documents to the other parent.
19. Each parent is at liberty to attend kindergarten/school events to which parents are ordinarily invited, regardless of whether the children are in their care during the event.
Extra-curricular activities
20. Neither parent will enrol the children in any extra-curricular activities requiring the attendance of the children during the time the children are in the care of the other parent, without the other parent’s written consent.
21. Each parent is at liberty to attend the children’s significant extra-curricular events such as sporting finals and concerts, regardless of whether the children are in their care during the event.
Health
22. Each parent must advise the other parent as soon as practical of any serious accident or illness suffered by the children while in their care, including details of any treating health professional, and to the extent it is necessary, the father will authorise all such treating health professionals to communicate with the mother regarding the children’s health.
23. Each parent must do all acts and things necessary to ensure that the children continue to engage with a general practitioner, paediatrician and any other required medical and/or allied health professional at their equal expense.
24. Save for in the event of a medical emergency, the mother is restrained by injunction from making any medical appointments (including allied health appointments) for the children without the father’s knowledge and written consent.
25. Each parent is at liberty to attend any specialist medical appointment for the children.
Travel within Australia
26. Unless otherwise agreed in writing, each parent is permitted to travel interstate with the children when the children are usually in the travelling parent’s care pursuant to the final orders, provided that –
(a) the children do not miss school; and
(b) at least 48 hours before the intended travel, the travelling parent provides the non-travelling parent with any flight itineraries, accommodation details and contact information.
Passports
27. For Australian Passports for the children, pursuant to section 11(b) of the Australian Passports Act 2005, the father is permitted to obtain and renew Australian Passports for the children without obtaining the written consent of the mother and the father will have sole parental responsibility for signing all documents necessary to enable the Australian Passports for the children to be obtained and renewed from time to time.
28. For Country J Passports for the children –
(a) within 14 days of being provided with the relevant documents from the father, the mother must do all acts and things required to obtain and renew Country J Passports for the children at the father’s expense, and in default of the mother’s compliance with this order;
(b) the father is permitted to obtain and renew Country J Passports for the children without obtaining the written consent of the mother and the father will have sole parental responsibility for signing all documents necessary to enable the Country J Passports for the children to be obtained and renewed from time to time.
29. The father is at liberty to provide a copy of the final parenting orders to the Australian Passport Office and to the Visa Facilitation Services Global and/or the Consulate General to give effect to paragraphs 27 and 28 of these orders.
30. The father hold the children’s passports.
Overseas travel
31. Notwithstanding any other provision, the father is at liberty to take the children to Country J if there is a family emergency (i.e. ill-health, serious injury or imminent death of a family member) or significant family event (such as a milestone celebration, anniversary or wedding), and will provide the mother with written notice of the travel as soon as possible, itinerary and return tickets for the children as soon as possible and will facilitate telephone communication with the children and the mother no less than twice a week during the travel.
32. The father is at liberty to take the children outside of the Commonwealth of Australia for holiday conditional upon –
(a) at least 30 days before any non-urgent overseas travel, the father must provide the mother with a detailed travel itinerary, copy of return tickets for the children and contact details for the children while they are overseas;
(b) facilitate communication between the children and the mother while the children are overseas no less than twice a week and any other time the children reasonably request; and
(c) the father must make up the children’s time with the mother as soon as practicable upon their return to Australia, if the travel coincides with the time the children would usually be in the mother’s care.
33. For the purpose of paragraph 32 above, the father is at liberty to take the children outside of the Commonwealth of Australia at the following times –
(a) during the school-holiday time the children are usually in the father’s care;
(b) each year, for one period of up to 28 consecutive nights, with the father to nominate the time by giving the mother 60 days written notice of the planned overseas travel and during this time, the time the children would have spent with the mother be suspended; and
(c) at such further and other times as agreed between the parties in writing.
Restraints by injunction
34. The parents, their servants and/or agents are restrained by injunction from –
(a) discussing these family law proceedings and the family violence proceedings or issues emanating from the family law proceedings and the family violence proceedings with the children or in the children’s presence/hearing;
(b) denigrating the other parent or the other parent’s family to the children, or in the children’s presence/hearing;
(c) questioning the children about or discussing with the children, or discussing in the children’s presence/hearing, the evidence in these proceedings;
(d) telling or encouraging the children to report to them things that have happened at their childcare/school or at the other parent’s house;
(e) telling or encouraging the children to keep secrets from the other parent; and
(f) passing messages to the other parent through the children.
35. The mother is restrained by injunction from taking the children to any medical and allied health practitioners other than the children’s current and usual treating practitioners, unless otherwise agreed by the father in writing.
Provision of orders
36. Each parent is at liberty to provide a copy of the final parenting orders to any childcare/school which the children attend, or any medical practitioner or allied health professional treating the children, Australia Post and Services Australia.
37. The father is at liberty to provide a copy of the family report prepared by Dr F dated 15 January 2024 to any medical practitioner and allied health practitioner/professional treating the children or either of the children from time to time.
65DA and 62B
38. Pursuant to sections 65DA (2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parents adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
Independent children’s lawyer
39. The independent children’s lawyer is discharged.
PROPERTY
Division of sale proceeds
40. By 4.00pm on 14 April 2025 the balance of the proceeds of sale of the former matrimonial home held in trust is to be paid as to 50% thereof to the wife and as to 50% thereof to the husband.
Child care subsidy debt
41. The child care subsidy debt of $21,994.89 must be paid equally by the parties.
Superannuation
42. The parties’ superannuation is to be split in such manner that the wife will receive the super entitlements in her name plus the agreed sum of $69,483 from the father’s super entitlements with the father retaining the balance.
43. In relation to the husband’s superannuation interest in Superannuation Fund 1 of which K Limited is the trustee (“the fund”), Customer Number: …, Account Number: …67 –
(a) there will be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 of a base amount of $69,483 to the wife from the husband’s interest in the fund;
(b) pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in the fund the wife will be paid an amount calculated in accordance with Pt. 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified at paragraph 43(a) and there will be a corresponding reduction in the entitlement the husband would have had in the fund but for this order;
(c) paragraph 43(b) will take effect from the operative time being seven business days after the day a sealed copy of this order is served upon the trustee of the fund;
(d) having been afforded procedural fairness the trustee of the fund will be bound to observe the provisions in paragraph 43(b) and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001;
(e) within 14 days of this order being made –
(i) the wife must serve a sealed copy of this order upon the trustee of the fund.
(ii) the wife must give notice in writing to the trustee of the fund pursuant to reg 72 of the Family Law (Superannuation) Regulations 2001; and
(iii) there will be liberty to apply to each party and the trustee of the fund in relation to the implementation of the orders affecting the superannuation interest.
Omnibus
44. The parties must close any joint bank accounts and the balance must be divided equally between the parties.
45. The husband will retain –
(a) Motor Vehicle 1;
(b) the bicycle;
(c) bank and like accounts in the husband’s name; and
(d) the personal effects, furniture and contents in the husband’s possession.
46. The wife will retain –
(a) Motor Vehicle 2;
(b) bank and like accounts in the wife’s name; and
(c) the personal effects, furniture and contents in the wife’s possession.
47. The shares in L Company Shares are to be retained by the wife.
48. Each party foregoes any claims they may have to any superannuation, long service leave, redundancy, retirement and like benefits belonging to or earned by the other.
49. Any joint tenancy of the parties is hereby expressly severed.
50. All insurance policies will remain the property of the named owner.
51. Any liabilities in the parties’ joint names will be paid by the parties in equal shares.
52. The wife will be solely liable for and indemnifies the husband in relation to –
(a) any liability encumbering any item of property to which the wife is entitled pursuant to these orders; and
(b) any and all other liabilities in the wife’s sole name.
53. The husband will be solely liable for and indemnifies the wife in relation to –
(a) any liability encumbering any item of property to which the husband is entitled pursuant to these orders; and
(b) any and all other liabilities in the husband’s sole name.
Further orders
54. The parties must do all acts and things necessary and sign all documents required to give effect to these orders.
Section 106A
55. Except as stated in paragraphs 17 and 28 of these orders, if either party refuses or neglects to sign or execute and return, within 14 days of a written request to do so by the other party, a document required for the implementation of these orders –
(a) a registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia Court is hereby appointed under s 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal; and
(b) the requesting party will be at liberty to apply for costs when submitting such an affidavit to the registrar.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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