Shinohara & Shinohara (No 2) - [2025] FedCFamC1F 122

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 159

Division 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 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 Act1975 (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.
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
WILSON J
A BRIEF BACKGROUND

These reasons address contested applications for parenting orders as well as contested applications for the alteration of property interests of the parties under s 79 of the Family Law Act 1975 (Cth).
To better understand these reasons, it is necessary to record certain formal details of the mother, the father and the children.
The mother is 42 years of age. The father is 40 years of age.
The parties commenced cohabitation in late 2016 or thereabouts, (the mother contending that the parties commenced cohabitation in 2017) and they married in late 2018.
By occupation the father is a technology professional.
The mother worked as a professional for a time. The mother is currently employed in a 12 month contract role.
The parenting issues relate to two children of the marriage, the older born in 2019 and the younger born in 2021.
On 13 February 2023 the parties separated and the father applied for a family violence intervention order against the mother.
The children have lived with the father since the parties’ separation in February 2023 upon the father obtaining the interim intervention order the effect of which was to exclude the mother from the former matrimonial home. Since January 2024 the mother’s time with the children has been unsupervised. Currently, the children spend time with the mother each alternate weekend from 9.00am on Saturday to 5.00pm on Sunday and on Wednesday from 9.00am until 6.30pm.
In issue in this litigation were several contested applications. They were –
(a)whether the parents should have shared parental responsibility for the children;
(b)if not, whether one parent or the other should have sole parental responsibility for the children;
(c)whether the children should live with the father;
(d)if not, whether the mother’s proposal for time with the children should be ordered which incorporated a regime for the children to live with her and spend five nights per fortnight with the father and half of the school holidays once the children commence school;
(e)alternatively, the father sought an order for the children to continue to live with him but that the children’s time with the mother be incrementally increased to four nights per week by mid-2026 subject to the mother engaging in mental health treatment recommended by various experts.
One 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.
It 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.
The 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 cables 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.
The 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.
The 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.
A major issue in this litigation was the safety of the children in the mother’s care having regard to her own mental health issues.
No mental health issues were asserted against the father.
UPSHOT
Having 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
A 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 poor mental health behaviour.[1] 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.
[1] Counsel for the mother opened on that basis on the first day of the trial on 11 November 2024 (Transcript 11 November 2024, p. 17 line 35).
Dr M
One clinical psychologist who gave viva voce evidence was Dr M. Dr M provided two reports in support of the mother, the first dated February 2024 and the second May 2024. Dr M conferred with the mother during seven separate consultations between December 2023 and February 2024. Dr M holds undergraduate, post graduate and doctoral qualifications from Australia and internationally. He holds professional fellowships and possesses extensive experience. On any view he has demonstrable experience as an expert, properly so-called, for the purposes of key authorities such as Makita (Australia) Pty Ltd v Sprowles,[2] Honeysett v The Queen,[3] Dasreef Pty Ltd v Hawchar[4] and Lang v The Queen.[5] I have proceeded on the basis that Dr M is a highly qualified, highly credentialled and highly experienced clinical psychologist, well versed in matters of a psychological nature relevant to the mother.
[2] (2001) 52 NSWLR 705.
[3] (2014) 253 CLR 122.
[4] (2011) 243 CLR 288.
[5] (2023) 278 CLR 323.
In his February 2024 report, Dr M stated that he was unable to find evidence that the mother presented as a danger to her children, to herself or to anyone else. In Dr M’s May 2024 report he stated that based on his 14 hours in consultation with the mother, he considered her to be an effective and caring mother who posed no risk of any harm to the children. He said that in his view the mother provides for the emotional, intellectual, personal and social development of the children in a nurturing, loving and appropriate manner. Dr M said he observed no evidence that the mother ever had a diagnosis of a psychiatric illness or disorder from a qualified health practitioner.
Dr M was cross-examined. Among the more significant evidence that emerged from Dr M’s answers to questions put to him in cross-examination were the following –
(a)he said Ms G, a psychiatrist, did not come to a full diagnosis nor a conclusion but rather came to a differential diagnosis, as did Dr F;[6]
[6] Transcript 12 November 2024, p. 159 lines 17–21.
(b)Dr M denied that he was the mother’s advocate although he admitted that as her treating psychologist he was concerned to ensure that she improved in her wellbeing;
(c)he maintained that since 2017 the mother had been under enormous stress yet he did not concede she suffered from any disorder;
(d)he said that in his opinion the mother was unlikely to have a severe mental health problem;[7]
(e)he said the mother does not have a long-term personality disorder;
(f)at one stage the mother was in fact very disturbed but Dr M could find no evidence of a history of pathology;
(g)the mother had a fraught relationship with her own father;
(h)CBT is therapy for PTSD;[8]
(i)the mother’s psychological problems began in 2017;[9]
(j)Dr M’s assessment of the mother was based solely on what the mother told him;[10]
(k)he has not seen the children, nor the children’s father, he has not spoken to the children’s carer or the children’s treaters;[11]
(l)Dr M saw the mother 24 times; and
(m)Dr M said he has empathy for his patients but not sympathy for them.[12]
[7] Transcript 12 November 2024, p. 162 lines 35–36.
[8] Transcript 12 November 2024, p. 167 lines 25–28.
[9] Transcript 12 November 2024, p. 170 line 22.
[10] Transcript 12 November 2024, p. 172 lines 43–44.
[11] Transcript 12 November 2024, p. 172 lines 25–31.
[12] Transcript 12 November 2024, p. 181 line 8.
In answer to my questions to Dr M he said he does not independently verify the information imparted to him by his patients.[13] Dr M said he saw the mother as his patient for whom he had her best interests at heart.[14]
[13] Transcript 12 November 2024, p. 182 lines 45–47.
[14] Transcript 12 November 2024, p. 184 line 36.
It was readily apparent to me that Dr M may not have been the mother’s advocate yet he was deeply invested in assisting the mother to overcome whatever mental health issues afflicted her. Dr M focused on the events of 2017 as being a source of great stress to the mother. When Dr M gave evidence in November 2024, seven years had elapsed since the events of 2017. He said the mother had improved in the sense that she coped with day-to-day stressors in a better manner than she did in 2017. I accept that Dr M’s professional purpose is to assist the mother. Whether the mother does or does not have a severe mental health problem, as Dr M said when questioned by counsel for the ICL, is a matter on which sophisticated psychiatric evidence turned. In saying that I make no criticism of Dr M. To the contrary, his role in this case has caused him to be immersed in the difficult task of assisting the mother to recover from what appeared to be a very bleak epoch in her life that may have originated from as early as her adolescent interactions with her father. The mental fabric of the mother in November 2024 appears on the evidence to have markedly improved.
Ms G, consultant psychiatrist
Ms G gave evidence in her capacity as a single expert. Ms G was at all relevant times a consultant psychiatrist who provided a report dated November 2023. That report incorporated details of her psychiatric assessment of the mother, the father and each child relevant to this litigation. So far as Ms G’s qualifications, training and experience were concerned, Ms G recited in her report that she is a consultant psychiatrist with additional qualifications in adolescent and adult mental health. Between August and September 2023 Ms G interviewed the parents and the children.
It is utile to record Ms G’s evidence in respect of the mother’s mental health. Ms G reported –
(a)the mother said she had minimal contact with the children since February 2023;
(b)the mother told Ms G that her own father was an extremely volatile and controlling person causing her to exhibit feelings of fear and dependency on him;
(c)the mother was disappointed when the children’s father accepted the mother’s father’s statement that she suffered from severe psychosis;
(d)following the birth of the youngest child, the mother said she developed fears concerning a person (thought to be a neighbour) who had acted inappropriately with her, yet she did not have auditory hallucinations;
(e)the father procured an apprehended violence order leading to the mother’s removal from the family home having thereafter minimal supervised time with her own children;
(f)the mother denied any symptoms of psychotic illness;
(g)the mother did not exhibit major mood disorder, major depression, psychotic symptoms, schizo-affective disorder or schizophrenia; and
(h)the mother did not present with ongoing paranoid delusions or formal thought disorder or behavioural or motor disturbance.

Ms G stated in her report that she did not find sufficient evidence to make a diagnosis of personality disorder.
Ms G expressed significant concerns about the eldest daughter’s sexualised behaviour towards the father. Ms G stated that the eldest child’s behaviour was common in highly stressed young children which required investigation.
Ms G said a more realistic differential diagnosis was different types of mental health disorder. She said the children want ongoing contact with both parents. She said the mother did not show signs of psychosis or serious mental illness and so supervised contact with the children by the mother was not recommended.
Ms G was cross-examined about aspects of her report by counsel for the ICL, counsel for the father and by counsel for the mother. In answer to variously expressed questions, she gave what I regarded as being highly instructive answers, namely[15] –
(a)by reason of episodes experienced by the mother in her childhood and adolescence the mother has acquired certain vulnerabilities;
(b)having regard to those vulnerabilities, in 2021 soon after the birth of one of her children the mother was severely impacted by the stress exerted on her;
(c)she suffered a transient state of mental ill health;
(d)following treatment for that condition, the mother’s mental health improved with the result that she presently exhibits less mental ill health; and
(e)people with underlying vulnerability to poor stress management have the possibility of big responses[16] if overwhelmed and conversely where mental health has improved risk can be mitigated.
[15] Transcript 14 November 2024, pages 398 – 400.
[16] This was Ms G’s choice of words – transcript 14 November 2024, p. 398 line 38.
Ms G said the following in answer to questions from me[17] –
“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.”
[17] Transcript 14 November 2024, p. 399 lines 6–10.
The 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.
Dr F, clinical and forensic psychologist
Further evidence in this litigation was given about the mother’s mental health by Dr F, a clinical and forensic psychologist. Dr F’s report dated January 2024 is long. However, to the extent that Dr F provided views on the mother’s mental health, they were encapsulated in the following propositions between paragraphs 80 and 93 of her report –
(a)the mother presented with guardedness and positive impression management rendering it difficult to provide a definitive view about the mother’s mental health;
(b)Dr F’s provisional view is that the mother’s presentation was most akin to a particular types of personality disorder; and
(c)after describing the traits associated with each disorder, Dr F pointed out that individuals with either are still capable of parenting their children but subject to the proviso that the relevant condition is managed with treatment and the individual is aware of his or her vulnerability and can manage his or her thoughts and distress to minimise the impact of those thoughts and distress on the individual’s functioning, relationship and parenting.
Dr F stated in her report that in her provisional view, some of the mother’s thoughts, associated emotions and behaviours were vastly disproportionate to the perceived stressors and other thoughts were very unlikely to be supported by reality. This suggested, according to Dr F, that the mother is in denial about her mental health difficulties or that the mother continues to be mentally unwell.
Dr 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.
Dr F stated in paragraph 85 of her report that she had reduced confidence in the mother’s capacity to detect, readily acknowledge or seek help when she is experiencing stress or when she develops strong skewed beliefs about others that related to her or her children being persecuted and harmed.
Dr F offered a variety of recommendations. Those included the following –
(a)as the children are progressing well in the father’s care they should remain in the father’s care;
(b)the mother’s time with the children should increase and transition from supervised to unsupervised time on the proviso that the mother remains linked with a psychiatrist or clinical psychologist and does not present with concerning persecutory beliefs and associated distress and behaviour;
(c)if all progresses well, it is reasonable that in the future consideration should be given to an equal shared care arrangement on the proviso that stability and consistency in routines and parenting styles across both households occurs;
(d)having regard to the children’s ages and experiences to date, consistency, stability and predictability in the day-to-day lives of the children is paramount to ensuring their positive development and wellbeing;
(e)having regard to the children’s difficulties transitioning to and from their parents’ care, a reduction in the frequency of visits may be useful;
(f)if the mother suffers from a a particular type of disorder, she is unlikely to report the episode and so monitoring her will be difficult; and
(g)the eldest child should be referred to a specialist clinician in the field of sexual abuse and sexualised behaviour.
Dr 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 resulting in the mother demanding the father to terminate his friendship with that person and her 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;
(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)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 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.[18]
[18] Transcript 15 November 2024, p. 417 lines 40–42.
Dr F gave evidence that she supported the ICL’s proposal for an increase in time in favour of the mother from one night to two nights per fortnight and that the children should reside in one place for about four months before adding another night, all subject to the mother engaging in proper trauma-based therapy, after which at the end of 12 months the mother should have five nights per fortnight with the children in tandem with the mother continuing to engage with proper treatment in the nature of trauma-based therapy as well as a relapse prevention type framework.[19]
[19] Transcript 15 November 2024, p. 423 lines 15–37.
Dr F was cross-examined on behalf of the father. From the answers Dr F gave to the questions put to her, the following emerged –
(a)Dr F would be concerned if the mother asserted that her behaviour had been completely reasonable in all the circumstances because such an approach disclosed that she did not possess the capacity to identify whether things are unravelling by reason of stress and to her management of matters;
(b)Dr F took the view that the important issue was the mother’s ability to manage internal unrest or suspicion in front of the children;
(c)any increase in the mother’s time with the children should be coupled with the mother attending upon a psychologist for ongoing assistance;
(d)the safest course is to keep stability and consistency in terms of the existing arrangements;[20]
(e)by other words, Dr F recommended there be no change in the spend time arrangements;[21]
(f)Dr F did not recommend an increase in time between November 2024 and the commencement of school in February 2025;[22]
(g)in the first six months of 2025, Dr F recommended an increase in the mother’s time with the children so long as the children are settled and are progressing well;
(h)Dr F agreed that it would be reasonable to increase the mother’s time with the children by the end of the first term of the school year at Easter 2025 so that the children stay with the mother on Friday night, Saturday by day, Saturday night to Sunday by day;[23]
(i)not having seen the family recently, Dr F was reluctant to proffer recommendations about the mother’s time with the children beyond the end of the first term of school in 2025; and
(j)as to the frequency of sessions with a psychologist to work with the mother, Dr F did not favour weekly sessions because weekly sessions are for people with severe personality disturbances, people who displayed self-harm, suicidal thoughts or had a very high level of dysregulation which the mother did not have so Dr F recommended fortnightly sessions but not monthly sessions.[24]
[20] Transcript 15 November 2024, p. 431 line 10.
[21] Transcript 15 November 2024, p. 431 lines 13–14.
[22] Transcript 15 November 2024, p. 432 lines 17–19.
[23] Transcript 15 November 2024, p. 432 lines 26–33.
[24] Transcript 15 November 2024, p. 434 lines 1–30.
In answer to questions put to her in cross-examination by counsel for the mother, Dr F agreed that no particular number of days between the mother and the children was necessarily precise. To that end the number of days selected was a matter of judgment. In addition, Dr F gave evidence that the method by which the intervention order was obtained against the mother caused distress.
Dr F gave valuable evidence to assist in the task of formulating orders, prospectively, for the children. She possesses 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. Importantly, Dr F posited various reasons why the mother may have behaved in a particular manner from her high school days, through 2017 to 2021 and until very recently. The unmistakable tenor of Dr F’s evidence was that episodes in the mother’s youth created vulnerabilities thereby rendering the mother highly susceptible to adverse impact from stressors. Those vulnerabilities rendered the mother adversely affected by jealousy, suspicion and by the dominating behaviour exhibited by the mother’s own father.
On 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.
A 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.
The 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.[25] I raised this with all counsel in final addresses and each agreed to the making of final orders.
[25] (1978) 6 Fam LR 570.
EVIDENTIARY ISSUES IN RELATION TO HISTORIC EVENTS
Since the decision of the five member Full Court in Isles v Nelissen[26] it has been held that –
(a)the determination of contested factual issues in respect of historical acts is to be assessed on the balance of probabilities; and
(b)risk of events occurring in the future is not assessed on the balance of probabilities.
[26] (2022) 65 Fam LR 288.
In this litigation the mother disputed a collection of factual matters, anterior to the father obtaining the IVO. The mother contended that no basis existed for the father to apply for the IVO. She also disputed that she suffered mental ill health at various stages of her marriage with the father.
So far as the formulation of orders for the children were concerned, they necessarily involved a careful assessment of risk.
THE PARTIES’ COMPETING PARENTING PROPOSALS
In accordance with stipulations by a number of Full Court decisions, in any contested parenting application the judge (me, in this instance) is required to consider each proposal in each version of the parenting application before the court.
While lengthy, the mother’s most recent proposal was reposed in her further amended initiating application filed on 28 November 2024. The father’s latest iteration was in his further amended initiating application filed 20 November 2024, whereas the ICL’s most recent proposal was set out in Ms Swann’s opening.
THE MOTHER’S PROPOSALS
The mother’s proposal was lengthy. It was as follows –
PARENTING
Procedural
1.All previous parenting orders be discharged.
Parental responsibility and living arrangements for the children
2.The mother have sole parental responsibility and decision-making responsibility for the children of the marriage, [X], born […] 2019, currently aged 5, and [Y], born […] 2021 , currently aged 3, (‘the children’), regarding all major, long-term issues concerning the children, on the condition when a long term issue arises:
a.The mother contacts the father in writing and provides her views about the issues.
b.The parents will make a genuine effort to come to a joint decision about the issue.
c.If no agreement is reached between the parents, then, within 7 days, the mother will make the final decision about the issue and advise the father in writing, of the decision.
d.If an urgent decision is required in an emergency, the mother will not be required to consult with the father and the mother will have sole parental and decision-making responsibility for the decision.
3.        That the children live with the mother.
4.        The children spend time with the father as follows:
a.Each alternate week, from the end of childcare and/or school on Friday until the start of childcare/and or school on Wednesday.
b.        At such other times as agreed between the parties.
5.The children’s transition back into the mother’s primary care be phased over a 6-month period from the date of the Final Orders in a fortnightly rotating cycle as follows:
a.Month 1: each alternate week from the conclusion of daycare and/or school (or 5pm if a non-daycare/non-school day) on Friday to 6.30pm Sunday.
b.Month 2: each alternate week from the conclusion of daycare and/or school (or 5pm if a non-daycare/non-school day) on Thursday to 6.30pm Sunday.
c.Month 3: each alternate week from the conclusion of daycare and/or school (or 5pm if a non-daycare/non-school day) on Wednesday to the commencement of childcare and/or school on Monday.
d.Month 4: each alternate week from the conclusion of daycare and/or school (or 5pm if a non-daycare/non-school day) on Tuesday to the commencement of childcare and/or school on Monday.
e.Month 5: each alternate week from the conclusion of daycare and/or school (or 5pm if a non-daycare/non-school day) on Monday to the commencement of childcare and/or school on Tuesday.
School holidays
6.That upon the children commencing school, during all school holidays, the children live with the mother and the father on a week about basis, with dates to be agreed between the parties.
Special occasions
7.That orders 3 4 and 5 shall be suspended on the special occasions set out below, and the children shall spend time with the mother and the father as specified in orders 8 to 14.
8.On each of the children’s birthdays, the children shall spend time with the party who does not have care of the children as follows from the conclusion of childcare and/or school (or 2:00pm if a non-childcare and/or non-school day) until 8:00pm.
9.On the mother’s birthday, the children shall spend time with the mother (if not already in the mother’s care) from the conclusion of childcare and/or school (or 10:00am if a non-childcare and/or non-school day) until the commencement of childcare and/or school the following day (or 12:00pm if a non-childcare and/or non-school day).
10.On the father’s birthday, the children shall spend time with the father (if not already in the father’s care) from the conclusion of childcare and/or school (or 10:00am if a non-childcare and/or non-school day) until the commencement of childcare and/or school the following day (or 12:00pm if a non-childcare and/or non-school day).
11.On Mother’s Day, the children shall spend time with the mother (if the children are not already in the mother’s care) from 5:00pm on the Saturday night preceding Mother’s Day until the commencement of childcare and/or school the Monday following Mother’s Day.
12.On Father’s Day, the children shall spend time with the father (if the children are not already in the father’s care) from 5:00pm on the Saturday night preceding Father’s Day until the commencement of childcare and/or school the Monday following Father’s Day.
13.During the Easter period, the children shall spend time with the mother and the father as follows:
a.        Commencing 2025, and each odd year thereafter:
i.with the mother from 12:00pm on Easter Sunday until 3:00pm on Easter Monday; and
ii.with the father from 3:00pm on Easter Saturday until 12:00pm on Easter Sunday.
14.During the Christmas period, the children shall spend time with the mother and the father as follows:
a.        Commencing 2024, and each even year thereafter:
i.with the mother from 3:00pm on Christmas Eve until 12:00pm on Christmas Day; and
ii.with the father from 12:00pm on Christmas Day until 3:00pm on Boxing Day.
Changeovers
15.Unless otherwise agreed between the parties, all changeovers that do not occur at the children's childcare and/or school, will occur at the parties’ homes, with the mother to collect the children at the commencement of her time from the father's home and the father to collect the children from the mother’s home at the commencement of his time.
Communication
16.The parties communicate by telephone, text message, email or such other messaging platform agreed between the parties in writing in relation to parenting arrangements, including on matters relating to the care, welfare and development of the children.
17.The parties are at liberty to communicate with the children, whilst the children are not in their care, via telephone and video conference at all reasonable times as agreed between the parties, and failing agreement:
a.each Tuesday and Friday and Sunday that the children are not in the parties’ care from 7:00pm until 7:20pm, with the party who does not have care of the children to call the other party’s mobile phone and the other party shall facilitate the calls; and
b.the children be at liberty to communicate with both parties via telephone at all reasonable times and the parties are to facilitate the calls in accordance with the children’s wishes.
Education
18.The parties do all acts and sign all documents necessary to accept the offers made by [P School] for childcare and kindergarten for [Y] commencing at the next earliest opening.
19.The parties do all acts and sign all documents necessary to accept the offer [X] received to commence Prep in 2025 at [Q School] (a public school);
20.[Y’s] birth date is […] 2021 and [Y] could be enrolled to commence Prep in 2026 and be one of the youngest in the class or in 2027 at be one of the eldest in the class. The parties adopt the same approach they took for [X]. The parties enrol [Y] to commence Prep in 2027.
21.The mother be at liberty to enrol [Y] into [Q School] (a public school) to commence Prep in 2027.
22.The parties do all such acts and sign all documents necessary to put [X] on the waitlist for Grade 2 at [R School] to commence in 2027, and if [X] is not offered a position in 2027 or the parties are unable to afford the school fees, then the parties will put [X] on the waitlist for the next earliest opening.
23.The parties do all such acts and sign all documents necessary to put [Y] on the waitlist for Prep at [R School] to commence in 2027, and if [Y] is not offered a position in 2027 or the parties are unable to afford the school fees, then the parties will put [Y] on the waitlist for next earliest opening.
24.Both parties be permitted to liaise directly with the children’s childcare and/or school, sporting, and extracurricular bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
25.Each party be at liberty to attend at the children's childcare and/or school and all extracurricular activities for the purposes of any function or activity normally attended by parents.
26.The parties shall be at liberty to provide a copy of these Orders to the children's childcare and/or school.
Health
27.Each party shall notify the other, as soon as possible and in any event within one hour, of any serious injury or illness suffered by either child whilst in the care of that party.
28.The parties will consult with each other before engaging any significant health assessments of the children, and both parties be at liberty to liaise directly with any of the children’s health professionals and attend all appointments in relation to significant health issues or significant health assessments of the children.
29.That parties shall exchange with each other the names, addresses and telephone numbers of all medical and mental health professionals who may treat the children and authorise each of those medical professionals in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the parties and authorise them to discuss any aspect of the children’s health with both parties.
30.That both parties do all acts and things necessary to ensure that the children continue to engage with a General Practitioner, Paediatrician, and any other required medical professional with the children’s medical expenses to be shared between the parties proportionate to their incomes.
Extra-curricular activities
31.The parties will ensure that the children attend all of their [sports] lessons, [dance] classes and any other agreed sporting, social and/or other agreed activities, during the time that the children are in the parties' respective care, and if such attendance cannot be accommodated for any reason, the other parent be given the first option to take the children to such class to ensure the children do not miss out on such classes.
32.The cost of the children’s extra-curricular activities will be shared between the parties proportionate to their incomes.
33.Each party will be 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.
Travel within Australia
34.Unless otherwise agreed in writing, each parent be 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 don’t miss school.
b.At least 7 days before the intended travel, the travelling parent provides the non-travelling parent with any flight itineraries, accommodation details and contact information.
Passports
35.      The mother holds the children’s passports.
Overseas Travel
36.Unless otherwise agreed in writing, each parent be permitted to travel overseas with the children when the children are usually in the travelling parent’s care pursuant to the Final Orders, provided that:
a.        The children don’t miss school.
b.At least 30 days before the intended travel, the travelling parent provides the non-travelling parent with any flight itineraries, accommodation details and contact information.
Restraints
37.      The parties are hereby restrained from injunction from:
a.abusing, belittling, insulting, rebuking, or otherwise denigrating each other, or any family members of each other, to or in the presence or hearing of the children or any of them and from permitting any other person to do so;
b.discussing these proceedings and/or adult issues with the children or within the hearing of the children;
c.allowing the children to spend unsupervised time with the maternal grandfather [Mr T], unless otherwise agreed between the parties; and
d.scheduling the children for any significant health assessments without the consent of the other party.
Provision of Orders
38.Each parent will be 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.
39.The mother will be at liberty to provide a copy of the Psychiatric Assessment of [Ms G] dated 6 November 2023 which includes recommendations for the children’s mental health and well-being to any medical practitioner, psychologist and allied health practitioner/professional treating the children.
THE FATHER’S PROPOSALS

The father’s further amended initiating application filed 20 November 2024 was the repository of the mother's proposed final orders. It is necessary to set out his proposal in precise terms. It was as follows –
Parenting
1.        All previous parenting orders be discharged.
Parental responsibility and living arrangements for [X] and [Y]
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, children), on condition that when a long term issue arises:
a.The father contact the mother in writing and provide his views about the issue.
b.The parents will make a genuine effort to come to a joint decision about the issue.
c.If no agreement is reached between the parents, then, within 7 days, the father will make the final decision about the issue and advise the mother in writing, of the decision.
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 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 7pm.
ii.Each alternate weekend from 9am Saturday until 5pm Sunday.
b.Commencing 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 7pm.
ii.Each alternate weekend, from the conclusion of childcare/school (or 3.30 pm if a non-childcare/non-school day) on Friday until 5pm 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 3.30pm on a non-school day) until the commencement of school on Thursday (or 9am 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 5pm Sunday.
d.Commencing end of 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 3.30pm on a non-school day) until the commencement of school on Friday (or 9am on 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 5pm Sunday.
e.By facetime or similar, each Tuesday and Thursday that the children are not in the mother’s care, commencing at 7 pm.
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 6 years old.
7.Upon [Y] turning 6 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 7 consecutive days until the commencement of the next school term.
c.With the parent in whose care the children are not in, by facetime or similar each Tuesday and Thursday at 7pm.
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 6 years of age, the mother 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.[Two types of mental health disorders].
b.Trauma and Trauma-response, and the impact of stress on the mother.
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 6 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 6 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.
d.The children’s time with the mother pursuant to paragraphs 5 and 7 8 of the 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 pm if a childcare/school day, or from 10am to 3pm 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 9am 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 am 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 5pm 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 5pm 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 3pm Easter Saturday until midday Easter Sunday, and with the father from midday Easter Sunday until 3pm Easter Monday.
ii.In odd numbered years, with the father from 3pm Easter Saturday until midday Easter Sunday, and with the mother from midday Easter Sunday until 3pm Easter Monday.
g.        For Christmas:
i.In even-numbered years, with the mother from 3pm Christmas Eve until midday Christmas Day and with the father from midday Christmas Day until 3pm Boxing Day.
ii.In odd-numbered years, with the father from 3pm Christmas Eve until midday Christmas Day, and with the mother from midday Christmas Day until 3pm Boxing Day.
Communication
13.The children be 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 be at liberty to enrol [X] and [Y] into [H School] (with [X] to commence grade Prep in 2025), and the father be 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 [X] and [Y’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].
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 7 days, then the father be and 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 [X] and [Y].
18.Each parent will be 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 will be 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 will be 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 will 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 will 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 be 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 will be at liberty to attend any specialist medical appointment for the children.
Travel within Australia
26.Unless otherwise agreed in writing, each parent be 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.
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 [MR SHINOHARA] be permitted to obtain and renew Australian passports for [X] born […] 2019 and [Y] born […] 2021, without obtaining the written consent of the mother [Ms Shinohara], and [Mr Shinohara] have sole parental responsibility for signing all documents necessary to enable the Australian Passports for [X] and [Y] 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 do all acts and things required to obtain and renew [Country J] Passports for [X] born […] 2019 and [Y] born […] 2021 at the father’s expense, and in default of the mother’s compliance with this Order; -
b.the father [MR SHINOHARA] be permitted to obtain and renew [Country J] Passports for [X] born […] 2019 and [Y] born […] 2021, without obtaining the written consent of the mother [Ms Shinohara], and [Mr Shinohara] have sole parental responsibility for signing all documents necessary to enable the [Country J] Passports for [X] and [Y] to be obtained and renewed from time to time.
29.The father be 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 be 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 be 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, he 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.
c.The father providing the Children with makeup 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.
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 be 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.
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 will be 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 be at liberty to provide a copy of the Family Report prepared by [Dr F] dated […] 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
39.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.
THE ICL’S PROPOSALS
The ICL’s case outline dated 20 June 2024 did not set out in precise terms the orders sought by the ICL. However, in Ms Swann's opening, the following was submitted –
(a)the two children are much loved by both parents;
(b)the father should have sole responsibility for decision making in respect of the children for the simple reason that the parents are unable to agree on most issues;
(c)the parents’ communication with one another, while civil, is dysfunctional;
(d)the children should continue to live with the father;
(e)a gradual increase in the children’s time should be ordered to five nights per fortnight with a week about regime during school holidays, such regime to be implemented by term 3 of the school year in 2025;
(f)any increase in time in the manner proposed by the ICL is subject to the mother continuing to engage in appropriate psychological treatment; and
(g)in all respects the ICL’s case outline is unchanged to the version filed in June 2024.
WRITTEN SUBMISSIONS

The 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.[44]
[44] Transcript 28 February 2025, p. 7 line 16.
Therefore, the only asset to be divided was the remaining amount from the sale of the former matrimonial home, namely $589,155.
A two pool approach
Counsel for the husband contended that this case warranted the adoption of a two pool approach to the assets in issue in this proceeding, one pool being all assets other than superannuation and the second pool being superannuation. In support of the two pool approach, counsel for the husband relied on the observations in Blandford & Esmore,[45] recognising, he submitted, that a holistic approach should be applied.[46]
[45] [2022] FedCFamC1A 67.
[46] Dickons v Dickons (2012) 50 Fam LR 244.
In debate with counsel for the husband I raised with him that conventionally a two pool approach (or for that matter an asset-by-asset approach) may legitimately be adopted where a very specific factual scenario applies to the issues associated with a specific asset. A global approach was sanctioned in a line of authorities[47] whereas an asset-by-asset approach has been sanctioned in a different line of authorities which include Zagari & Habib.[48]
[47] In the Marriage of McMahon (1995) 19 Fam LR 99, In the Marriage of Gill (1984) 9 Fam LR 969 and In the Marriage of Ahmad (1994) 18 Fam LR 514, for example.
[48] [2010] FamCAFC 159.
Counsel for the husband submitted that superannuation differs from other forms of property because it accumulates over a person’s working life and access to the accumulated funds is severely restricted until retirement rendering it appropriate to address superannuation separately from other assets, as was done in Coghlan & Coghlan[49] and considered in Blandford & Esmore.[50]
[49] [2005] FamCA 429.
[50] [2022] FedCFamC1A 67.
In this case the parties agreed on a superannuation split in a particular sum in favour of the wife. Of course, that agreement did not address the merits of separately treating superannuation from the parties’ other assets. In my view there is merit in the contention that superannuation should, in this case, be treated separately. I say that for several reasons, namely –
(a)the nature of superannuation differs from other forms of property because access to it is curtailed by the terms of applicable legislation and by the terms of the trust fund under which it is administered, as distinct from other forms of real and personal property in issue in this case;
(b)aside from there being no disagreement as to the amounts of certain assets, the percentages argued by each party were disputed;
(c)the relationship in this case was short;
(d)an assessment of contributions will be relevant to all assets not the subject of agreement; and
(e)in the case of superannuation, the parties agreed on the amount which should be split.
Naturally, even where parties reach a resolution on property matters, that does not axiomatically demonstrate that the agreement is just and equitable.[51]
[51] Harris v Caladine (1991) 172 CLR 84.
In terms of the parties’ submissions on contributions, counsel for the husband contended that in the absence of any consideration of s 75(2) factors, assets should be divided as to 60% in favour of the wife. Once s 75(2) factors were considered, counsel for the husband submitted that the adjustment in percentage terms was 50% in favour of the wife and 40% in favour of the husband. The relevant s 75(2) factors included that the husband would have the mainstay of the care for the children over several years to come.
Understanding the parties’ financial position
The court exercising powers under s 79 of the Family Law Act ascertains the relevant property and its value at the date of the hearing.[52] No presumption exists of an entitlement to an equal division of assets, as the High Court held in Mallet v Mallet.[53]
[52] In the Marriage of Zappacosta (1976) 2 Fam LR 11, 214, In the Marriage of Myerthall (1977) 3 Fam LR 11, 324, In the Marriage of Wardman & Hudson (1978) 5 Fam LR 889 and In the Marriage of Waters (1981) 6 Fam LR 871, to name but a few.
[53] (1984) 156 CLR 605.
Despite the so-called balance sheet being populated with a variety of references to parcels of real property, the parties’ evidence disclosed that the only remaining item of property available for division was the balance of the sale proceeds of the former matrimonial home in the sum of $589,155.
In order to better understand that state of affairs it became necessary to trace the parties’ acquisition and sale of property from the commencement of their relationship.
In 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.
The Suburb FF unit
The 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 Bank HH. She did not depose to monthly instalments of the mortgage.
The wife deposed to effecting the sale of the Suburb FF unit in early 2022 for $400,000.
From 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.
The 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.
The 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.
The Suburb EE apartment
Prior 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.
The husband deposed to selling the Suburb EE apartment in late 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.
The Suburb BB property
Chronologically earlier in time was the acquisition of the land and improvements that became the former matrimonial home in Suburb BB. The wife asserted that the former matrimonial home was acquired pursuant to a contract dated early 2021. The purchase price was $2,210,000, settlement of which was affected in mid- 2021. The wife stated that Bank HH provided mortgage finance. The wife did not say who the purchaser on the contract was or if joint or whether both the parties were co-purchasers. However, the mortgage was in joint names.
So 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 stated earlier in these reasons the wife deposed she had obtained a line of finance in the joint names of the parties from HH Bank because she deposed to having operated a fixed rate mortgage (account no. …27) as well as an offset account for a variable rate mortgage (account no. ….71).
The Suburb BB property was sold in mid-2024. The wife’s version of events concerning the sale of the Suburb BB property was recorded in paragraph 319 of her written submissions. Relevantly paraphrased, her version amounted to the following –
(a)the property was auctioned in mid-2024;
(b)no sale was effected and the property was passed in after the auction;
(c)the wife stated in her written submissions that the husband and the auctioneer (Mr GG) “put pressure on” her (her words) to list the property for private sale at $2,250,000’;
(d)she asserted that the husband verbally abused her as did the auctioneer;
(e)she said she insisted on the property being listed for sale at $2,310,000;
(f)in mid-2024 the property was sold for $2,310,000;
(g)she alone caused the additional sum of $60,000 to be generated representing the increased sale price (the difference between $2,310,000 being the actual sale price and the price at which the property was passed in, namely $2,250,000; and
(h)she claimed the sum of $60,000 as a contribution referable solely to her.
Several things must be said about her contentions in that regard. First, the Suburb BB property was owned jointly by the wife and husband. In other words, the Suburb BB property as a joint asset could not be sold by only one of the registered proprietors. Further, even if the wife had insisted on the higher price, any such insistence was irrelevant unless and until a willing buyer actually executed an enforceable contract of sale at the higher price. As it happened, the wife asserted that “[in mid] 2024 the property sold for $2,310,000” inferring that the purchaser actually agreed to pay the increased amount. Put differently, the property sold because a willing buyer agreed to pay the increased price, irrespective of the identity of the person who suggested that increased amount.
I know of no principle of Australian family law or of the law of contract pursuant to which the mother could successfully argue that her insistence on the higher price which led to the Suburb BB property being sold for $60,000 more than the price at which the property was passed in following auction represents a contribution by her. The wife relied on no authority to that effect. I reject her contention in that regard.
CONTRIBUTIONS BASED ASSESSMENT
As 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, Motor Vehicle 1, Motor Vehicle 2, an bicycle, 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)

Motor Vehicle 1 to be retained by the husband

$12,590

(d)

Motor Vehicle 2 car to be retained by the wife

$1,300

(e)

Bicycle to be retained by the husband

$8,500

The 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 Motor Vehicle 2 ($1,300), the husband would retain Motor Vehicle 1 ($12,590) and the bicycle ($8,500).
PERCENTAGE DIVISION
On 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 –
(a)the fact that since July 2020 or thereabouts the husband has been the effective carer for the children; and
(b)the husband will continue to have ongoing care obligations for the children that predominate in his favour.
Mr Hutchings recognised that the wife’s father’s gift of $400,000 represented, numerically, the most sizeable contribution and that it must be brought to account in this case. I agree.
It seemed to me that upon considering the future needs of the parties and the husband being the primary career, a 50/50 division is just and equitable in these circumstances. It is relevant that between separation and sale, in July 2024, the husband paid the weekly sum due to the mortgagee in respect of the former matrimonial home.
Remaining assets
A few remaining assets were recorded on the balance sheet. However, it was an agreed position that the parties would retain the following items –

(a)

L Company Shares to be retained by the wife

$5,086

(b)

Motor Vehicle 1 to be retained by the husband

$12,590

(c)

Motor Vehicle 2 to be retained by the wife

$1,300

(d)

Bicycle to be retained by the husband

$8,500

Liability

Only one liability was put forward in this case, namely, a child care subsidy debt. In the so‑called balance sheet the debt was included in the amount of $39,440 by the wife. The husband asserted that a zero sum was attributable to that item. In her final address[54] the specific sum was reduced by the Administrative Appeals Tribunal to $21,994.89. No issue was taken by Mr Hutchings about the reduction of that indebtedness from $39,444 to $21,994.89. The wife informed me that steps by way of enforcement of the debt for three months from 28 February 2025 were suspended, making it payable by 28 May 2025.
[54] Transcript 28 February 2025, p. 34 line 8.
The background associated with the reduced amount of $21,994 was not easily understood. The wife told me in final addresses that the debt was in the name of the wife and it related to a claimed amount in relation to a childcare subsidy. She said[55] the debt had arisen because the husband had claimed amounts to which he and the wife were not entitled. The wife said that when making the claim the husband falsely asserted that he suffered from financial hardship. She described the claim as being fraudulent. Even though the wife was not legally represented when this case was at final address stage, she needed to exercise greater care before making an allegation of fraud.[56]
[55] Transcript 28 February 2025, p. 36 line 5.
[56] Goodridge v Beadle (2017) 57 Fam LR 425.
The husband did not put forward a contrary position to that of the wife in respect of the Centrelink debt. Precisely who was indebted by reason of the sum of $21,994 was unexplored in the evidence. The debt was in the name of the wife yet she asserted that the husband fraudulently incurred it. That said, the amount benefitted the parents, it being a childcare subsidy. Each parent should share this liability. Such an allegation about fraud carried with it the requirement of proof to a Briginshaw[57] standard. None was proved. No fraud about it was established.
[57] Briginshaw v Briginshaw (1938) 60 CLR 336.
I find that the debt to Centrelink is a joint liability. It was alleged to be a debt incurred fraudulently by the husband. No evidence of any such fraudulent incurring of the Centrelink was proved. The debt is in the wife’s name. She took measures in the Administrative Appeals Tribunal to procure the reduction of the debt to the lower amount of $21,994. However, in my view, it is not just nor is it equitable to fasten one particular parent with the full liability for the Centrelink debt of $21,994 having regard to the fact that the debt arouse for the betterment of the children. To my mind, that liability should be shared.
PROPERTY ORDERS
The parties urged me to make orders that have the effect of concluding this litigation which include the pronouncement of final property orders which I do now.
Division of sale proceeds
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
The child care subsidy debt of $21,994.89 must be paid equally by the parties.
Superannuation
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 husband’s super entitlements with the father retaining the balance.
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 163(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 163(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 163(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
The parties must close any joint bank accounts and the balance must be divided equally between the parties.
The husband will retain –
(a)Motor Vehicle ;
(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.

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.
The shares in L Company Shares are to be retained by the wife.
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.
Any joint tenancy of the parties is hereby expressly severed.
All insurance policies will remain the property of the named owner.
Any liabilities in the parties’ joint names will be paid by the parties in equal shares.
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.
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
The parties must do all acts and things necessary and sign all documents required to give effect to these orders.
Section 106A
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.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.
Associate:
Dated: 31 March 2025

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 159
Division	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

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

(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

(a)	funds in trust	$589,155
(b)	shares to be retained by the wife	$5,086
(c)	Motor Vehicle 1 to be retained by the husband	$12,590
(d)	Motor Vehicle 2 car to be retained by the wife	$1,300
(e)	Bicycle to be retained by the husband	$8,500

(a)	L Company Shares to be retained by the wife	$5,086
(b)	Motor Vehicle 1 to be retained by the husband	$12,590
(c)	Motor Vehicle 2 to be retained by the wife	$1,300
(d)	Bicycle to be retained by the husband	$8,500