Leena & Leena (No 3) [2025] FedCFamC1F 254 (17 April 2025)

NHC & RCH [2004] FamCA 633

Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595

Garrett & Garrett [1983] FamCA 55; (1984) FLC 91-539

Hayne & Hayne [1977] FamCA 41; (1977) FLC 90-265

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC 93-143

In the Marriage of Biltoft [1995] FamCAFC 45; (1995) FLC 92-614

Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757

Lambert & Jackson [2010] FamCA 357

Leena & Leena [2024] FedCFamC1F 135

Phillips & Phillips (2003) FLC 93-104

Rodgers v Rodgers (No 2) [2016] FamCAFC 104

Roverati and Roverati [2021] FamCAFC 89

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Trevi & Trevi [2018] FamCAFC 173

Wallace & Wallace [2022] FedCFamC1F 536

Wardman & Hudson [1978] FamCA 68; (1978) FLC 90-466

Waterman & Waterman [2020] FamCA 369

Waters & Jurek [1995] FamCA 101; (1995) FLC 92-635

Watson & Ling [2013] FamCA 57; (2013) 49 Fam LR 303

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. All previous parenting orders in relation to the children, X born in 2015 and Y born in 2018 ("the children") be discharged.
2. The parties have equal shared parental responsibility and joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) ('the Act') affecting the children.

1. The children live with the mother.
2. The children spend time with the father during school term periods as follows:

(a) As and from the commencement of Term Two, 2025, in each alternate week from the conclusion of school on Friday (or 9.00am if school is not in session) to the commencement of school on Tuesday (or 9.00am if school is not in session);

(b) At such further or other times as agreed between the parties in writing.

1. That during school holiday periods, the children spend time with each of their parents as follows:

(a) During the Term One school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein; and

(ii) With the mother at all other times;

(b) During the Term Two school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children's time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Wednesday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and

(ii) With the mother at all other times;

(c) During the Term Three school holiday period in 2025:

(i) With the father pursuant to the terms of paragraph 4(a) herein save that on one occasion only, the children's time with the father shall be extended such that in lieu of 9.00am on Tuesday, such time be extended to 5.00pm on the following Thursday NOTING it is the intention of this order that the rotation provided at paragraph 4(a) herein shall continue in any event; and

(ii) With the mother at all other times;

(d) As and from the Christmas school holiday period in 2025/2026 and in each Christmas school holiday period thereafter, the children spend time with each of their parents on a week about basis at times as may be agreed between them in writing or in default of agreement as follows:

(i) With the father for one period of seven consecutive nights commencing on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Friday and in each alternate week thereafter;

(ii) With the mother at all other times save and except as expressly provided by these orders;

(e) As and from the Term One school holiday period in 2026 and in each short-term school holiday period thereafter, the children spend one half of each short school holiday period with each of their parents at times as may be agreed between them in writing or in default of agreement as follows:

(i) With the father for one period of eight consecutive nights commencing at 5.00pm on the Friday on which the children would ordinarily be in the care of the father pursuant to the terms of paragraph 4(a) herein and concluding at 5.00pm on the following Saturday (being eight nights later);

(ii) With the mother at all other times NOTING it is the intention of these orders that the rotation provided at paragraph 4(a) herein shall continue in any event.

1. The children spend time with each of their parents at times as may be agreed between them in writing but in default of agreement as follows:

(a) On the occasion of Christmas:

(i) With the mother in 2025 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;

(ii) With the father in 2025 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;

(iii) With the father in 2026 and in each alternate year thereafter from 3.00pm on Christmas Eve to 3.00pm on Christmas Day;

(iv) With the mother in 2026 and in each alternate year thereafter from 3.00pm on Christmas Day to 3.00pm on Boxing Day;

(b) With the mother on the occasion of Mother's Day from 9.00am to 5.00pm;

(c) With the father on the occasion of Father's Day from 9.00am to 5.00pm.

(d) On the occasion of each child's birthday:

(i) If the children are not otherwise in the care of the father then with the father as follows:

1. If a school day from the conclusion of school to 6.30pm;
2. If a non-school day, from 8.00am to 2.00pm;

(ii) If the children are not otherwise in the care of the mother then with the mother as follows:

1. If a school day from the conclusion of school to 6.30pm;
2. If a non-school day, from 8.00am to 2.00pm.

1. That handovers occur at the children's school if school is in session and otherwise, at a fast food outlet located at F Street, Suburb G in the State of New South Wales.

1. Each parent shall ensure that he/she facilitates telephone contact between the children and the other parent at any reasonable time that the children express a wish to communicate with the other parent.

1. Within fourteen (14) days of the date of these Orders, the parties do all acts and things necessary to make an appointment with Dr H, paediatrician, for the purposes of obtaining a referral to a paediatric psychiatrist in respect of the child, X, for review and to assess the need for psychotropic medication and for this purpose:

(a) Each parent is to attend all appointments with the paediatrician and psychiatrist;

(b) Each parent is to share one half of 'out of pocket expenses' after receiving any applicable rebate from Medicare and/or the National Disability Insurance Scheme;

(c) The parties shall provide Dr H and the psychiatrist engaged by them with a copy of the following:

(i) The report prepared by Dr J, specialist psychologist, dated 11 June 2024;

(ii) These parenting orders;

(d) The parties shall comply with the recommendations of the paediatric psychiatrist with respect to X's ongoing treatment including recommendations made with respect to the provision of or cessation of medication.

Medical Issues and administration of medication

1. Each parent shall comply with all recommendations made by the children's treating medical practitioners with respect to the provision of medication to the children (or either of them).
2. Within twenty-four (24) hours of a parent making an appointment for the children (or either of them) with a medical practitioner or allied health care professional, the relevant parent is to provide details of that appointment to the other parent in writing with such notice to include the date, time and location of the said appointment and thereafter, each parent is at liberty to attend the appointment subject to the discretion of the treating professional at all times.
3. Each parent shall advise the other parent as soon as practicable of any major medical issue affecting the children (or either of them) and each parent shall keep the other parent informed of any treatment or medication prescribed for the children (or either of them).

1. Each parent shall facilitate the attendance of the children (or either of them) at all extracurricular activities in which they are enrolled whilst the children are in his/her care NOTING THAT the children are currently enrolled to attend an extracurricular activity.
2. Each parent is restrained, and injunction is granted restraining each of them from enrolling the children (or either of them) in any other extracurricular activities without the written consent of the other parent.

Authorities, Provision of Information and Communication between the parties

(a) Permitted to communicate directly with the children's school/s, sporting bodies, and medical practitioners to obtain any information and/or documentation about the children's progress and this Order shall constitute sufficient authority for such communication;

(b) Permitted to attend at parent-teacher interviews for each of the children provided that each parent makes his/her own separate appointment;

(c) At liberty to attend at events to which parents are ordinarily invited such events to include but not be limited to assemblies, sports days, concerts and end of year presentation nights.

1. The mother and the father communicate as follows in relation to the children:

(a) By telephone in the case of an emergency; and

(b) By the "Our Family Wizard App" in relation to any other matters relating to the parenting arrangements prescribed by these Orders or the health, welfare and development of the children.

1. The mother and the father keep each other advised of his/her residential address and telephone number and advise the other parent of any change to these details within 48 hours of such change.

1. Each parent do all acts and things and sign all documents necessary to obtain Australian passports for the children within fourteen (14) days of being requested to do so by the other parent with the costs of obtaining or renewing the children's passport(s) to be at the joint and equal expense of the parties.
2. On receipt of the children's passports, the parties shall cause the same to be delivered to the Parramatta Registry of the Federal Circuit and Family Court of Australia with such passport not to be released to either parent save and except on proof by the travelling parent of compliance with the terms of Order 20 herein.
3. Each parent is permitted to remove the children from the Commonwealth of Australia for up to twenty-one (21) days per annum or for any alternate duration as may be agreed between the parties in writing on the following conditions:

(a) The travelling parent shall provide the other parent no less than forty-two (42) days' notice of the proposed travel;

(b) The travelling parent shall provide to the other parent an itinerary, which includes particulars of airline flights and accommodation whilst overseas;

(c) The travelling parent shall provide to the other parent a contact telephone number for the purposes of communication with the children during the period of any travel.

1. The travelling parent shall return the children's passports to the Parramatta Registry of the Federal Circuit and Family Court of Australia within fourteen (14) days of the children's return to the Commonwealth of Australia.

1. The parties be restrained and an injunction is hereby granted restraining each of them from:

(a) Facilitating the attendance of the children or either of them on Ms E;

(b) Denigrating the other parent to or in the presence or hearing of the children or allowing any third party to do so;

(c) Denigrating any member of the other parent's family to or in the presence or hearing of the children or allowing any third party to do so; and

(d) Permitting the children to access or read any documents filed in these proceedings or any correspondence or reports prepared in relation to these proceedings.

1. The appointment of the Independent Children's Lawyer be discharged.

1. Pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
2. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
3. All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.

In full and final settlement of all claims for settlement of matrimonial property:

1. Within forty-two (42) days of the date of these Orders, the Applicant Wife ("the wife") do pay to the Respondent Husband ("the husband") a sum of $659,136.
2. Within forty-two (42) days of the date of these Orders, the wife do pay to the husband a sum of $5,500 being monies owed to the husband by the wife on account of the wife's share of fees payable with respect to the preparation of a report by Dr J, specialist psychologist.
3. That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at L Street, Suburb K in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier .../... ("the Suburb K property").
4. That simultaneously with the transfer of the Suburb K property referred to at Order 29 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Suburb K property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.
5. That contemporaneously with Order 27 herein, the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in and to the property known as and situated at M Street, Town O in the State of New South Wales being the whole of the land contained within Certificate of Title Folio Identifier .../... ("the Town O property").
6. That simultaneously with the transfer of the Town O property referred to at Order 31 herein, the wife shall at her own expense do all acts and things and sign all documents as may be necessary to refinance the mortgage secured over the Town O property into her sole name provided that the husband sign the appropriate discharge authorities within seven (7) days of the same being presented to him for his signature.
7. In the event that the wife fails to pay the sums referred to at Order 27 and/or Order 28 herein, and should such default continue for a period of thirty days or more, then:

(a) The wife shall pay interest on such sum as may be outstanding at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date that payment of the sum was due until payment is made in full; and

(b) The Suburb K property shall be placed on the market for sale.

(a) The parties shall do all things necessary to appoint an agent to list for sale and sell the Suburb K property and failing such agreement as to the identity of the agent within 45 days of the default referred to at Order 33 herein, the parties shall appoint such agent as is nominated by the President of the Real Estate Institute of New South Wales upon the written request of either party;

(b) The parties shall do all acts and things necessary to appoint a solicitor or licensed conveyancers to act on the sale of the Suburb K property by agreement and failing such agreement within 45 days of the default referred to at Order 33 herein, the parties shall appoint such solicitor or conveyancer as is nominated by the President of the Law Society of New South Wales upon the written request of either party;

(c) The sale price at which the Suburb K property be listed be mutually agreed upon by the parties, or in the absence of agreement, as nominated by the agent appointed pursuant to these orders;

(d) The parties cooperate in every way with the agent appointed pursuant to these orders including but not limited to:

(i) Making the key available to the agents;

(ii) Allowing inspection of the Suburb K property at all reasonable times requested by the agent;

(iii) Ensuring the Suburb K property including its grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;

(e) Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Suburb K property or to any commission;

(f) Pending the sale of the Suburb K property the wife shall be solely responsible for maintaining the outgoings of the property including all mortgage payments.

1. In the event that the Suburb K property is not sold by public auction within three (3) months of the date of default, the parties are to do all acts and things and sign all documents necessary to relist the Suburb K property for sale by private treaty or public auction every six weeks on the same terms and conditions referred to at Order 34 herein save that, unless otherwise agreed, the sale or reserve price shall be reduced by five (5) percent at each auction until the property is sold.
2. On settlement of the sale of the Suburb K property, the proceeds of sale shall be applied in the following manner and priority:

(a) In discharge of the mortgage secured against the Suburb K property;

(b) All costs and expenses of sale including legal costs and disbursements, agents' commission and auction expenses;

(c) The amounts required to pay all municipal rates, water rates or land tax due in respect of the property;

(d) Such sum as is necessary to satisfy the monies owing to the husband pursuant to Order 27 and Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein;

(e) A sum of $5,500 to the husband being monies owed to the husband by the wife on account of the wife's share of fees payable with respect to the preparation of a report by Dr J, child psychologist and child psychotherapist;

(f) The balance then remaining to the wife.

1. In the event that the net proceeds of sale are insufficient to satisfy the monies owing to the husband pursuant to Order 27 herein and/or Order 28 herein or such sum as is outstanding together with interest calculated pursuant to the terms of Order 33(a) herein and/or if the wife fails to comply with the terms of Order 33(b)herein then and in that event, the Town O property be placed on the market for sale on the same terms and conditions as Orders 33 and 34 herein and the net proceeds of sale shall be distributed in the same priority and manner as described at Order 36 herein.
2. The husband do all things and sign all documents as may be necessary to transfer ownership at law and in equity in respect of the following accounts to the wife:

(a) ANZ Account ending #46;

(b) P Investment Member Number ...

1. The wife is declared to be the sole owner in equity and at law to the exclusion of the husband to the following:

(a) Any funds standing to her credit in any account held by her with any financial institution;

(b) Motor Vehicle 1 Registration Number ...;

(c) Motor Vehicle 2;

(d) P Investment;

(e) Any superannuation fund in which the wife has an interest;

(f) Any and all life insurance policies in the wife's name;

(g) All and any annual leave or long service leave or other employment benefits or entitlements;

(h) Her interest in the Estate of the late Ms Q.

1. The husband is declared to be the sole owner in equity and at law to the exclusion of the wife to the following:

(a) Any funds standing to his credit in any account held by him with any financial institution;

(b) Leena Pty Ltd;

(c) Any superannuation fund in which the husband has an interest;

(d) Any and all life insurance policies in the husband's name;

(e) All and any annual leave or long service leave or other employment benefits or entitlements.

1. Notwithstanding paragraph 29 above, the husband be permitted to attend at the Suburb K property on a date and at a time to be agreed between the parties or failing agreement on the second Saturday following the date of these Orders between 8.00am and 5.00pm to collect the following:

(a) The husband's sports Jersey;

(b) All racking in the garage;

(c) Waste oil tank;

(d) The husband's novelty item;

(e) The husband's fishing rod;

(f) The husband's box of magazines located in the garage; and

(g) The husband's golf clubs.

1. The wife do indemnify and keep the husband forever indemnified in respect of any monies owing by the parties to Services Australia.
2. Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the superannuant;

(b) Each party shall be solely liable for and shall indemnify the others against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for tax arising out of the sale by the parties of property pursuant to these orders.

1. In the event of any party refusing or neglecting to sign within seven (7) days of a written request to do so any document necessary to implement the terms of these orders a Registrar of Federal Circuit and Family Court of Australia is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act (Cth).
2. All outstanding applications are dismissed.

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 Leena & Leena (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are proceedings between parties pursuant to Part VII and Part VIII of the Family Law Act 1975 (Cth) ("the Act") following the breakdown of their marriage in 2022. Their relationship was one of ten years duration.
2. The Part VII proceedings involve the parties' two female children. The eldest child is aged nine years, and the youngest child is aged six years.
3. The Part VIII proceedings relate to the division of a modest pool of assets.
4. This proceeding has an extraordinary history. The wife commenced proceedings in Division 2 of this Court on 5 May 2023 being five months after separation. Since that time:

(a) The parties have filed 178 documents;

(b) The competing applications have been the subject of 26 orders;

(c) The wife and the husband have between them filed 29 subpoenas;

(d) The affidavits of the parties alone, which were filed for the purposes of trial comprised 1,300 pages and the tender bundles were in excess of 2,000 pages;

(e) The wife's legal fees and disbursements (both paid and unpaid) have accrued to just under $300,000 although the proceedings have been on foot for less than two years.[1] The husband's legal fees and disbursements (both paid and unpaid) are almost in excess of $400,000. It follows that the proceedings have been financially ruinous for the parties.

1. On 17 August 2023, and with the consent of each party and the Independent Children's Lawyer, the Court made an interim order to the following effect:

(a) That the parties have equal shared parental responsibility for the children;

(b) That the children live with the wife; and

(c) That the children spend time with the husband from the conclusion of school on Friday to the commencement of school on Monday in each alternate week.

1. It was the wife's oral evidence that she was never satisfied with the terms of the August 2023 Orders and placed blame on her former solicitor for negotiating terms which were unsatisfactory to her. Despite the wife's discomfort with the interim orders, she has never filed an application to discharge or vary the same.
2. Against this background, the parenting proceedings involve a dispute about whether:

(a) An order ought to be made allocating sole parental responsibility and sole decision-making authority to the wife;

(b) The children's time with the husband ought to be reduced such that the children spend time with the husband on alternate Sundays from 9.00 am to 5.00 pm and on one afternoon per week subject to the children's participation in extracurricular activities. The wife says that such an outcome will "minimise the risk of future harm to [the children]";[2]

(c) The children's time with the husband ought to be increased such that the children spend five nights per fortnight with the husband during school term in addition to half of all school holiday periods.

1. For her part, the Independent Children's Lawyer and her counsel have since the commencement of the trial promoted orders that the children spend four nights per fortnight with their father in addition to half of all school holiday periods.
2. With respect to the competing financial applications, the issues that need to be determined are:

(a) An assessment of the parties' respective contributions pursuant to s 79(4)(a), (b) and (c) of the Act in relation to non-superannuation and superannuation assets; and

(b) Whether an adjustment in favour of either party pursuant to s 79(4)(e) of the Act is warranted on account of s 75(2) factors.

1. The wife's counsel submits that on account of contributions, the Court ought to make an order to the effect that the parties' non-superannuation and superannuation assets be divided on a 70:30 basis in her favour on account of contributions made during the relationship and subsequently. The wife does not promote an adjustment in favour of either party on account of their prospective needs.
2. In contrast, the husband's counsel invites me to make an order to the effect that the husband receive sixty percent of the non-superannuation and superannuation assets. He arrives at this submission on account of the following contentions:

(a) That the contributions of the parties ought to be determined as equal;

(b) That there ought to be a ten percent adjustment in his favour on account of prospective needs in circumstances where the wife is expecting to receive a substantial inheritance.[3]

1. By his Response to Initiating Application the husband also sought a departure order pursuant to Division 4 of the Child Support (Assessment) Act 1989 (Cth). That application was withdrawn at the commencement of trial.
2. In circumstances where each party seeks an order under s 79(1) of the Act for an alteration of interests in property, albeit to different effect, it is implicit that they concede it is just and equitable for the Court to do so, as required by s 79(2) of the Act. I agree that it is just and equitable for the Court to make an order under s 79 of the Act. Particularly, and as will become clear, there is not and will not be the common use of property by the husband and wife. Further, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the severance of the marital relationship.[4] The matters identified by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] apply in this case.
3. For the reasons identified below, I have determined that it is appropriate to divide the non-superannuation and superannuation assets on a 57:43 basis in favour of the husband on account of the significant monies, which the wife will receive from the estate of her late mother.

1. The wife is aged 40 years. The husband is aged 37 years. The parties commenced a relationship in 2012 and began living together in 2013.[5] Thereafter, the parties married in 2016 and separated on a final basis on 24 September 2022.[6] The parties lived separately under the same roof until the husband moved out in late 2022.[7]
2. Regrettably, the parties' relationship was marked by a series of distressing events. The parties undertook multiple rounds of "IVF treatment".[8] Regrettably, some embryos did not survive, and the wife had a number of miscarriages.[9] The parties also found themselves in dispute about how to dispose of succumbed embryos and this dispute was the subject of a judgment delivered by the Honourable Justice Riethmuller on 8 March 2024.[10]
3. Fortunately, and despite these difficulties, the parties have two female children who are the subject of these proceedings. Subsequent to the parties' separation, the children lived primarily with the wife.
4. The elder child has been diagnosed with an Attention Deficit Hyperactivity Disorder, autism spectrum disorder and a general anxiety disorder. The wife says that consequently, the elder child "struggles with concentration and staying on tasks".[11] She also says that the elder child "needs and requires routine and consistency as change or disruption to normal routine can cause dysregulation".[12]
5. The younger child has been diagnosed with autism spectrum disorder, a sensory processing disorder, attention deficit hyperactivity disorder and eczema.[13] As a consequence of her diagnosis with a sensory processing disorder, the wife says that the younger child is "sensitive to certain sounds and her dislike of certain materials on her body and ultimately resulting in her crying and becoming distressed".[14]
6. Subsequent to separation, and in December 2022, the parties attended a mediation. The parties agreed for the husband to spend unsupervised time with the children including on an overnight basis.[15] The husband complained that despite this agreement, the wife would cut short his time with the children on account of commitments with third parties and/or extracurricular activities.[16] Regrettably, in late February 2023, the parties found themselves in dispute as a consequence of the husband's refusal to return the children to the mother so that the children might participate in sporting lessons. The husband says that the wife unilaterally arranged those lessons in his time with the children without consultation or his consent.[17] The wife's solicitors then went into print and through her solicitors, the wife insisted that the children's time with the father be supervised.[18] I will discuss this topic in further detail below. In any event, and after the wife insisted that the children's time with the husband be supervised, the children did not spend any time with the husband for a period in excess of five months.
7. On 17 August 2023, and with the consent of the parties and the Independent Children's Lawyer, the Court made an Order to the effect that the children live with the wife and spend three nights per fortnight with their father. As discussed above, the wife's oral evidence was that she was never satisfied with this arrangement. It is notable that notwithstanding the concerns expressed by her solicitor's letter (supra), there was no requirement identified in the Orders of 17 August 2023 for the children's time with their father to be supervised.
8. The husband has re-partnered and has been in a relationship with his new partner for a little over two years. They live together. His partner has a male child who is now aged ten years. That child lives with his biological father for about six nights per fortnight.[19] The husband's partner provided oral and written evidence. The wife has also re-partnered. She has been in a relationship with her partner for a period of about seven months and she and her partner are expecting the birth of a child in the near future. The wife's new partner did not provide any evidence nor was he called as a witness in these proceedings.
9. With respect to financial issues, the parties commenced cohabitation in a property owned by the husband at Suburb V in the State of New South Wales.[20] The wife says that she made various contributions to the Suburb V property in the form of various improvements[21]. Having regard to the improvements referred to by the wife, I do not consider that the contributions were so significant that an adjustment in favour of the wife is warranted. In any event, and notwithstanding any contribution made by the wife, it is the uncontested evidence of the husband that he was solely responsible for payment of the mortgage secured against the property together with statutory outgoings.[22]
10. At the time of cohabitation, the wife owned a property at Suburb S, which is also in New South Wales. Notwithstanding this, the wife at the time of cohabitation was the subject of a debt agreement pursuant to Part IX of the Bankruptcy Act 1966 (Cth).
11. Although neither party produced any evidence as to the quantum of his/her initial contributions at the time of trial, the parties' written evidence identifies that:

(a) In August 2015, the wife sold the Suburb S property and received around $294,700 by way of sale proceeds;[23]

(b) In October 2016, the husband sold the Suburb V property and received a sum of around $283,200 in addition to a sum of $54,163 received from the deposit paid by the purchasers.[24]

1. Each party asserts that he/she had chattels, superannuation and motor vehicles in addition to real property at the time of cohabitation but absent any retrospective valuation of those items, I am unable to bring them to account.
2. During their relationship, the wife worked on a full-time basis save and except when she took maternity leave following the birth of each child.[25] For his part, the husband established, with the assistance of the wife, his own business in 2016.[26] Whilst that business was successful, it was my impression that the husband became resentful of the number of hours worked by him suggesting during the course of his oral evidence that whatever he earned, it would never be enough for the wife. In the three years prior to commencing his own business, the husband worked on a full-time basis as a tradesman and for a short time, in a manual role.[27]
3. In March 2016, the parties purchased a land and house package at Suburb K.[28] The parties paid a deposit in equal amounts and the balance of the purchase price was funded by way of a mortgage.[29] The parties moved into that property in about early 2017. In February 2018, the parties purchased an investment property at Town O. That property was purchased by refinancing the mortgage secured over the Suburb K property.[30] The Town O property was rented to third parties from about 2019.
4. The parties had several windfalls during the relationship and subsequently. Particularly:

(a) In 2022, the husband received an inheritance of $10,000. Those monies were applied to the parties' day to day expenses.[31] In the same year, the wife's mother gifted her a sum of $50,000 to assist with expenses relating to the household and to the children;[32]

(b) In September 2024, the wife received what she describes as a "part-distribution of my inheritance from my mother's estate in a sum of $352,280". The wife says that to the best of her knowledge, her mother's estate is yet to be finalised and she asserts that it is the subject of contest by her family members.[33] The monies received to date by the wife have been expended on repairs to the Suburb K property and on what the wife describes as "improvement of the children's lives".[34] She also says that she used the monies on:

(i) mortgage payments[35];

(ii) costs associated with the funeral of a friend's relative;[36]

(iii) in vitro fertilisation treatments;[37]

(iv) a holiday to Tasmania and expenses associated with a planned vacation to the United States of America together with the children;[38] and

(v) Christmas presents for the children.[39]

1. Additionally, in April 2024, the wife says that she received a sum of $290,600 as a result of a claim for medical negligence arising out of surgeries.[40] The husband disputes the amount and says that the true figure is $200,846 with the monies diminished on account of legal costs and disbursements with respect to the medical negligence claim.[41]
2. Those monies have now been expended on legal fees for the medical negligence claim and a loan, which the wife says she obtained to fund the family law proceedings.[42] Whatever the scenario, and in respect of the compensation monies, the husband calculated that at least $94,880 was spent on legal fees and disbursements in respect of these proceedings and the balance was totally expended by about June 2024.[43] The husband was not challenged with respect to his evidence and the wife confirmed in her oral evidence that at least "some" of the compensation monies were applied towards legal fees.
3. Subsequent to separation, the husband has continued operating the business. The wife has continued to work at a government department. She anticipates that she will take maternity leave from 2025[44] and be absent "from her employment "for several months following the birth of [her] third child".[45]
4. It is against this background that the competing parenting and financial applications fall for determination.

(a) A Further Amended Initiating Application filed on 6 December 2024;

(b) The wife's Affidavit filed on 6 December 2024;

(c) A Financial Statement filed on 6 December 2024;

(d) An Affidavit in the name of the children's treating "autism specialist" filed on 6 December 2024;

(e) An Affidavit in the name of the children's treating paediatrician filed on 6 December 2024. With the consent of the husband and the Independent Children's Lawyer, that Affidavit was admitted into evidence absent any cross-examination of the paediatrician;

(f) An Affidavit in the name of a shadow expert appointed by the wife to prepare valuations in respect of three motor vehicles. The shadow expert was not called to give evidence and ultimately, the parties were able to agree the value of the motor vehicles the subject of the single expert's report dated 3 January 2025; and

(g) Tendered documents.[46]

(a) An Amended Response to Initiating Application filed on 26 November 2024;

(b) The husband's Affidavit filed on 20 December 2024;

(c) An Affidavit in the name of the husband's partner filed on 20 December 2024; and

(d) Tendered Documents.[47]

1. The Independent Children's Lawyer relied on the report of a single expert, namely, a report prepared by a clinical psychologist and child psychotherapist dated 11 June 2024. The Independent Children's Lawyer also relied on some tendered documents.[48]
2. The parties filed a Joint Balance Sheet filed in accordance with an Order made by the Honourable Justice Riethmuller on 16 September 2024. The Balance Sheet provided me with no assistance whatsoever and it was not until the sixth day of trial that I was provided with a settled document.[49]
3. At the commencement of the trial, I advised counsel that I would exclude all annexures to each party's Affidavit having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I advised counsel that annexures to affidavits and documents referred to in tender bundles would not be considered by me until the relevance and probative value of each document was established during evidence-in-chief and/or cross-examination of the parties. My ruling was in part ignored by counsel and accordingly, I was provided with a list of documents by each counsel, which were marked for identification and referred to in the footnotes of this judgment.

1. For the purposes of my discussion about the competing parenting applications, I will refer to the parties as the mother and the father.
2. The mother, by her Outline of Case Document, asserts that "there are risk issues relating to the father that adversely impact upon the children".[50] Having regard to this asserted risk, the mother seeks an order that the children's time with the father be reduced such that the children spend time with the father on alternate Sundays from 9.00 am to 5.00 pm and on one afternoon per week subject to the children's participation in extracurricular activities. It is the mother's opinion as expressed by her counsel that her proposed orders will "minimise the risk of future harm to [the children]".[51] On the mother's proposal, the children will never spend more than five daytime periods with the father during short term school holidays or fifteen daytime periods with the father during Christmas school holiday periods.
3. The mother also sought a range of other orders including:

(a) An order for sole parental responsibility and sole decision-making authority in relation to major long-term issues concerning the children;

(b) Orders regulating communication between the children and each parent;

(c) Orders regulating communication between the parties themselves;

(d) Orders for changeovers. Specifically, the mother proposed that handovers, which do not occur at school occur at a police station;

(e) Injunctive orders restraining the father from attending any appointments between the children and any medical practitioner or other health professional;

(f) An order requiring the father to forfeit time with the children in the event that he cannot personally care for the children as well as an injunctive order restraining the father from leaving the children in the care of any third party;

(g) Orders regulating the attendance of the children at extracurricular activities;

(h) An order requiring the father to administer medications prescribed for the children by their treating medical practitioners;

(i) Orders requiring the father to undertake a parenting course and an additional course related to parenting children with an autism spectrum disorder and/or an attention deficit hyperactivity disorder;

(j) An order requiring the father to comply with directions made by his medical practitioner in relation to "his mental health issues" and/or attention deficit hyperactivity disorder; and

(k) Orders regulating overseas travel.

1. In contrast, the father sought orders in the following terms:

(a) An order that the parties have equal shared parental responsibility for the children and joint decision-making responsibility;

(b) An order that the children spend time with him for five nights per fortnight;

(c) An order that the children spend half of all school holiday periods with him.

1. In a manner similar to the mother, the husband sought a range of ancillary orders, which I discuss below.
2. For her part, the Independent Children's Lawyer promoted orders in the following terms:[52]

(a) An order for the parties to have equal shared parental responsibility for the children;

(b) An order that the children live with the mother;

(c) An order that the children spend four nights per fortnight with their father as well as one half of each school holiday period (albeit the Independent Children's Lawyer suggested that such arrangements only be implemented after a period of gradually increased time between the children and their father).

CREDIT AND OBSERVATIONS OF THE MOTHER AND THE FATHER

1. The mother was cross-examined by the father's counsel in a very polite, considered and calm manner. Despite the professional and calm way in which the father's counsel cross-examined the mother, it was my observation from the commencement of the hearing that the mother was combative and defensive. It was also my observation that the mother was dogmatic with respect to the opinions held by her and further, the mother was only prepared to accept her version of events with respect to differences in the parties' written and oral evidence. Counsel for the Independent Children's Lawyer at one juncture during his cross-examination of the mother, described her as "arrogant". Whilst the mother may have considered this criticism to be unfair and unpleasant, it was equally my impression that the mother's evidence was characterised by a conceited assertiveness and dogmatism.
2. Having listened to the mother's evidence over an extended period, I suggested that the father could never hold a candle to her parenting of the children. I explained to the mother that it is not the purpose of the Act nor the Court to remedy every imperfection, which the mother has identified with respect to the father's parenting of the children. Instead, I explained that when determining the children's best interests, I must consider arrangements which will promote the children's safety including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm. The mother at one stage suggested that neither I nor the Independent Children's Lawyer understood the difficulties, which she says she experienced as a result of the father's conduct. This perception no doubt gave rise to the mother making a recusal application, which I heard and determined on 11 February 2025.[53]
3. Whatever the scenario, the mother took every opportunity during her oral evidence to criticise the father and his parenting capacity. On occasion, the mother took those opportunities even when her commentary about the father was entirely irrelevant to the question she was being asked. I agree with the submission made by the father's counsel that the mother's behaviour could only lead a fair-minded observer to one conclusion. That is, the mother was either unable or unwilling to make any concession, which might cause the father to be viewed in a "positive light" because such a concession would be antithetical to the outcome, which the mother desired to achieve - namely, a significant reduction in the children's time with the father such that they spend one day per fortnight with him only.

1. The father also presented as combative and defensive. However, it was my impression that the father presented in this manner in circumstances where he was displeased with the criticisms levelled at him by the mother and annoyed that the parties were engaged in stressful litigation in this Court.
2. At one juncture during his cross-examination by the mother's counsel, the father simply "shut down" and declined to answer any question put to him in a sensible manner. At that time, the father answered every question with "I don't know". Rather than being evasive, it was my impression that the father is simply worn down by this litigation and incensed that his parenting of the children was being so closely scrutinised by the Court and by the mother. Having listened to the parties' evidence, my impression is that the father's parenting of the children will never be good enough by reference to the standards set by the mother. Whilst that might be so, the task, which falls to me pursuant to the terms of Part VII of the Act, is to consider the children's best interests having regard to the criteria referred to in the Act as opposed to the mother's subjective standard.

1. The mother identified the following risk factors by way of her Outline of Case Document:

(a) Conflict between the father and the elder child;

(b) The inability of the parties to provide structure and routine "that is consistent in both of their homes as recommended by the children's treating medical practitioners";

(c) The father's "failure to accept and resistance to accepting medical advice and diagnoses for the children";

(d) The father's "failure to properly administer the children's medications during their time with him" and failure to ensure that the children eat lactose free foods;

(e) The father's "impaired parenting capacity by reason of family violence, alcohol use and mental health issues"; and

(f) Denigration of the mother by the father.[54]

1. The father identifies that in the post-separation period, the mother has:

(a) Restricted his time with the children;

(b) Made unilateral decisions for the children without consulting him or obtaining his consent;

(c) Been overly critical of his care of the children;

(d) Denigrated the father and/or criticised his parenting of the children to educational and health service providers;

(e) Restricted the father's ability to engage with the children's treating medical practitioners and other health professionals.[55]

1. I will discuss the father's contentions under the heading "Analysis of the mother's behaviour". At first instance, however, I will consider each of the mother's contentions as advanced by her counsel's Outline of Case document.

Does the father represent a risk to the children on account of conflict between the father and the elder child?

1. The principal ground relied upon by the mother to support a conclusion that there is conflict between the elder child and the father relate to events, which occurred in September 2024. With respect to the events in September 2024, the mother in her written evidence says as follows:

To the best of my knowledge and understanding, an argument occurred between [the father and the elder child] which resulted in [the elder child] fleeing [the father's] home and running around the block. To the best of my knowledge, [the elder child] was running away, had no shoes on which caused the neighbours concerns. I understand that it was a neighbour who had reported a suspected kidnapping to the police. [The father] was apprehended by [...] policemen and [...] police cars as he was heading home with [the elder child].[56]

1. The father's written evidence is in less emotive terms. He says that on an evening in September 2024, the children had been watching a movie when they began arguing about a make-up case, which they had received as a gift from a paternal family member. The elder child did not wish to share the make-up case with her sister, and the father says that after telling the elder child to go to "time out", he tried to grab the make-up bag from her. The father says that when the elder child refused to give the make-up bag to him, he threatened to take the elder child back to the mother's residence. The father was criticised on cross-examination by the mother's counsel for making such a threat. I agree that the father ought not have done so. Thereafter, the father says that the following occurred:

I started walking to the [motor vehicle] and realised I forgot the keys inside. It was not my intention to take her home, I planned to take her to the petrol station to get a drink and calm down. I went back inside to get the keys whilst [the elder child] stood at the [motor vehicle] waiting to get in. By the time I got the keys, [the elder child] had walked two houses up. I got in the [motor vehicle] and drove up to her. She turned around and started walking in the other direction. I stopped the [motor vehicle] and got out. At this point, [the elder child] started running back towards the house. I had to run a few paces to catch her. When I caught up to her, I picked her up and put her in the [motor vehicle].[57]

1. I suspect it was this event, which caused a neighbour to contact police. In any event, the father says that he took the elder child to a service station where they shared a cold drink and chips "and talked". On calming down, the father says that he started driving back towards his house at which time he was surrounded by police cars. The police had acted on an assumption that a kidnapping had occurred but on learning of the father's identity, the attending officers agreed that the ordeal was based on a complete misunderstanding.[58]
2. Despite lengthy cross-examination of the father on this topic, I reject any suggestion by the mother that he was responsible for the attendance of police cars on the evening in question. Further, the criticism of the father ignores the following:

(a) The mother in Term One, 2024 expressed concern to school staff about the elder child having run on to the road whilst at school and expressed concern about the perimeter fence of the school.[59] The mother conceded in her oral evidence that the elder child ran away from after school hours care in February 2024;

(b) In February 2024, the elder child's treating paediatrician advised her general practitioner as follows:

[The mother] reported that [the elder child] continues to show features of anxiety and has tried to "runaway" from school/after school care when feeling overwhelmed. She continues to have some obsessive behaviours [...] and shows "emotional reactivity" to changes in school (new classroom, new peer situations etc)".[60]

1. On cross-examination, the mother conceded that:

(a) When she met with the elder child's treating paediatrician in February 2024, she expressed concern that the elder child tried to run away from school and after school hours care on becoming anxious;

(b) She sought an increase in the elder child's medication in February 2024 on account of the child's alleged anxiety;

(c) She discussed the issue of the child's propensity to "runaway" on occasions when she feels overwhelmed with the elder child's "autism specialist" who extended at least one session with the elder child in an attempt to address the same.

1. It follows that the mother herself was concerned about the propensity of the elder child to "runaway" on occasions when she felt overwhelmed. Further, and given that the occasions referred to by the mother occurred when the elder child was in the mother's care, it is difficult to understand how the mother can be critical of the father's conduct in September 2024.
2. The mother also says that in October 2024, the elder child expressed a view to the father and his partner that she did not want to visit their residence anymore. Particularly, and having expressed that view, the mother says that:

(a) The father's partner advised the elder child that she was "hurting" her father's feelings;

(b) The elder child advised the father's partner that she did not "feel safe". In response, the father's partner allegedly told the elder child that she could "get out [of the house]"; and

(c) After further disputation, the father advised the elder child that she had hurt his partner's feelings and would accordingly need to go to a store and buy gifts for the father's partner using the elder child's money.[61]

1. The father denies the mother's assertion and says that in fact, the elder child asked him to buy a gift on her behalf so that she might give it to the father's partner to "say sorry".[62]
2. Whatever the tension between the elder child and her father and/or the father's partner, observations of interactions between the elder child and the father by the single expert demonstrated a loving relationship. Particularly, the single expert recorded the following:

On arriving in the consultation room, [the elder child] moved to hug the father, and immediately sat beside him, having brought along a word search book she busied herself with. She leaned into the father, and they appeared comfortable together.

...

All three [namely, the father and the children] proceeded to make love hearts, and [the elder child] had a specific idea of which love heart was for whom, she included the father's partner as a recipient of one of the love hearts but appeared to put more effort into the heart she was making for the mother, although it was hard to see exactly what she was doing.[63]

1. For these reasons, I reject the mother's assertion that the father presents a risk to the children on account of alleged conflict between the father and the elder child.

Failure to properly administer the children's medication

1. The mother explains by her affidavit that the elder child is prescribed clonidine, concerta and fluoxetine.[64] I understand that the first two medications treat symptoms associated with attention deficit hyperactivity disorder whilst the last medication treats anxiety. The mother also says that the elder child is prescribed melatonin on an as needs basis and OsmoLax powder as required to treat constipation. The younger child takes melatonin and is otherwise prescribed creams for her eczema. The mother gives examples of occasions in early 2023 when she says that the father refused to provide the elder child with her prescribed medication and/or refused to administer the younger child's creams for the treatment of eczema.[65] The father acknowledged by his affidavit filed on 20 December 2024 that the younger child is prescribed with cream to treat her eczema.[66] He also says that although he does not observe the younger's child's eczema to flare up whilst in his household, the younger child does sometimes ask him to apply the cream.[67] Given the children's knowledge of their conditions as expressed by each party in his/her affidavit material, I do not consider this to be surprising.
2. The administration of medication appears to have become a contentious issue between the parties when the children commenced spending overnight time with the father. The father explains that at this juncture, the mother would send the children with their medication in "unmarked clear Ziplock sandwich bags...without any directions for administration".[68]
3. The mother also complained by her affidavit filed on 6 December 2024 that the father's partner administered melatonin to the younger child in early September 2023. Having become aware of the same, and on 18 September 2023, the mother's solicitor sent the father's solicitor a letter asserting that the father was "struggling with the children's basic needs to the extent that he had his partner administer medication to [the younger child]".[69] The same proposition was put to the father in cross-examination by the mother's counsel.
4. The father explained by his written evidence that on the weekend prior to receipt of the correspondence dated 18 September 2023, he had taken the younger child's melatonin out of its bottle and at the same time, he had prepared the elder child's medication "ready on the bench to give to her". The father says that whilst he was giving the elder child her medication, his partner picked up the younger child's medication from the bench and gave it to her.[70] At the time that the father's partner did so, he had been in a relationship with her for about twelve months.
5. I had the opportunity to observe the father's partner during cross-examination. She presented as a sensible and honest person. By her written evidence, the father's partner said as follows with respect to the administration of medication to the younger child:

On the weekend of 16 September 2023, I saw that [the father] was preparing to give [the children] their medication. As the father gave [the elder child] her medication, I picked up [the younger child's] melatonin that [the father] had prepared and gave it to [the younger child]. This was the only occasion I have given the children their medication. On all other occasions, their medication has been administered by [the father].[71]

1. It was my impression that the father's partner is a person who cares not only for the father but also for his children. She has her own child, namely, a ten-year-old son who lives in her primary care. She is engaged in employment, and it was my impression based on the written and oral evidence of the father and his partner that she is a supportive partner. Having heard the evidence of each of them, I have no concern whatsoever about the ability of the father or his partner to properly administer the children's medication.
2. I am concerned, however, that the mother will utilise any opportunity to criticise the father's parenting abilities when conversely, she will always find a justification for her own actions. This is highlighted by the mother's evidence that despite the father's partner knowing the children for twelve months at the time of the administration of melatonin to the younger child, she was still a stranger to them and that "teaching children to take medication from a stranger...is sending a wrong message". It was her position that the children going without their medication was better than them being administered it by the father's partner. However, the mother showed no insight when asked if she thought it was appropriate to leave the younger child in the care of a new boyfriend whom she had only been dating for a week. Unsurprisingly, it was the mother's evidence that her partner, unlike the father's partner, was not a stranger and that she had to do so as there was no one else available to care for the child. It needs to be noted that at this time the mother did not seek help from the father and instead advertised for assistance via Facebook.[72]
3. Further, I do not need to consider the merit of the mother's complaint about the administration of medication because on 1 March 2024 orders were made with the consent of the parties to do all things necessary for the children's medication to be administered by a Webster pack and for that item to "travel with the children at changeover".[73] The single expert also recorded that the Webster packs are "pre-filled by the mother who gives them to the father via the children".[74] The oral evidence of each party was to the effect that the institution of the Webster pack had resolved any difficulties associated with the administration of prescription medication to the children. Further, the mother advised the children's psychologist, Ms R, that any issue associated with the administration of medication had been resolved by the use of the Webster pack.[75] I also bring to account the findings of the single expert in the following terms:

The father, by virtue of having medications supplied in the dispensing boxes, would seem to be administering the medications as required and any significant interruptions to this would be expected to be reflected at school or in...appointments [with the children's autism specialist] ...but this does not appear to be the case.[76]

1. With respect to the use of melatonin, the mother makes no complaint that the younger child is tired after spending time with the father. This being so, and irrespective of whether the father provides the younger child with the same, I am able to find that the child sleeps adequately at her father's home. Indeed, and in September 2024, the younger child advised her teacher that it only takes her "two minutes to fall asleep" at her father's residence.[77]
2. For these reasons, I reject the mother's assertion that the father presents a risk to the children on account of his alleged failure to properly administer the children's medication.

Father's resistance and failure to accept medical advice and diagnoses for the children

1. The father by his affidavit filed on 20 December 2024 accepted that the elder child has a diagnosis of ADHD and an Autism Spectrum Disorder. He accepted the same diagnosis with respect to the younger child.[78]
2. On interview by the single expert, however, the father did say that he did not agree with the level of diagnosis with respect to autism.[79] The single expert expressed an opinion that as a consequence, the father's "capacity and willingness to participate in long-term decisions related to [the children's] diagnoses may be impacted".[80]
3. The single expert's initial opinion must be seen against the following background:

(a) It was the single expert's view that the level of diagnosis of autism was "surprising" given feedback from the children's school "in terms of how the children fare" and the expert's own observations for the report;[81]

(b) On cross-examination by the father's counsel, the single expert agreed that he had "a question mark about [the level of diagnosis]";

(c) In 2022, a medical practitioner at the Child and Adolescent Mental Health Service expressed a view that the elder child did not meet the diagnostic criteria for an autism spectrum disorder.[82] The single expert considered that the level of diagnosis "would have been readily evident" at that time if the behaviours referred to in the relevant criterium had been exhibited;[83]

(d) The children's school reported to the single expert that whatever the children's level of difficulty, it "did not necessarily transfer to the learning environment to a significant degree";[84] and

(e) On cross-examination by the father's counsel, the single expert agreed that to the extent that the father had expressed concern about the children's level of diagnosis, such concerns were "not necessarily unjustified concerns".

1. I also acknowledge that the father was not involved in the assessment process. To this extent, the father's assessment of the children's individual characteristics, strengths and skills in areas like daily living skills, communication and thinking was not taken into account.
2. For these reasons, I reject the submission made by the mother's counsel that the father's concern about the children's level of diagnosis is indicative of some greater reluctance to accept medical advice. When rejecting the submission, I also place some weight on the single expert's opinion that he too had "a question mark about [the level of diagnosis];" (supra).
3. Additionally, the mother makes complaint that the father has refused to accept medical advice to the effect that the children are lactose intolerant.[85] The father's response is that the children have not been formally diagnosed and/or that their physical symptoms do "not line up" with such a diagnosis.[86] Particularly, the father by his written evidence and his partner by her written[87] and oral evidence, say that the children "eat ice creams, milk, cheese and dairy" when with the father absent side effects. The children have also reported to their father that they eat dairy treats in the mother's household.[88] Whatever the scenario, the evidence is not sufficiently strong to enable me to find that the children have been diagnosed as lactose intolerant and/or are being harmed by the diet in their father's household even if such a diagnosis has been made.
4. For all these reasons, I reject the mother's assertion that the father presents a risk to the children on account of his alleged failure to accept medical advice and diagnoses for the children.

Father's failure to take the children to an extracurricular activity

1. The parties agree that as at 2023, the children attended an extracurricular activity each Tuesday, Thursday and Saturday.[89]
2. In or around November 2023, the mother sought to re-enrol the children in the extracurricular activity for 2024. The father did not consent to the mother re-enrolling the children in the extracurricular activity on Saturday mornings and communicated this to her via his solicitors. It is the father's evidence that he did not consent on the basis that he would rather be spending meaningful time with the children on the Saturday rather than spending the time commuting to and from the site of the extracurricular activity, which he says consumed the majority of the day.[90] It needs to be noted that at this juncture, the children's time with the father was limited. Despite the father's communication and an interim order made with the consent of the parties on 17 August 2023, which restricted the mother from enrolling the children in any extracurricular activity during the father's time with the children without his consent, the mother re-enrolled the children in their Saturday classes in 2024.[91] It is the mother's view that:

...[the extracurricular activity] assists with expanding [the children's] social and cultural interactions. I also believe the children feel at ease with their [...] friends and that the [activity] is an opportunity for the children to build a sense of community and belonging with their peers who share similar interests.[92]

1. In his affidavit, the father says that he continued to facilitate the children's attendance at the extracurricular activity up until the commencement of the new term in 2024.[93] He concedes that "since this time, [he has] not been facilitating the children's attendance at their [extracurricular activity] on the Saturday mornings when they are in [his] care".[94] The mother says that the father's actions were against the wishes of the children and the children expressed to her on multiple occasions that they wished to attend. The children also expressed this view to the single expert.
2. It was the single expert's oral evidence that the children attending the extracurricular activity on a Saturday is:

...an interesting issue. I think, at this stage, given the children's age, they - as I understand it, they're afforded opportunities to go to [the extracurricular activity] in the fortnightly cycle many other times, and assuming that's still the case, then I think - I don't think they're missing out on a whole lot on not going - sorry - not being able to go to [the activity] when with the father on the second Saturday. I think it's likely to become an issue when they get older, and [the activity] remains very important for them. They're likely to see the father as thwarting their interests. I suspect, at their ages now, they're able to get on with the other opportunities that are afforded to them when with the father on the alternate weekends in lieu of [participating in the activity]. That may well change, but right now, I would imagine it's not such a contentious issue.

It would be a good idea if they could continue [the extracurricular activity on Saturday] if [the father] had more time with the children, so that that time was better spent with [him], and they could build a better relationship with [him].... not going with the father at this age doesn't seem a significant hindrance. It may become so but not now".

1. The single expert opined that not allowing the children to attend the extracurricular activity on Saturdays would only negatively impact the children "if that was the only [...] opportunity that week". The father says that he has contacted the organisers and has been advised that "Saturday classes [are] offered on alternate days during the week".[95]
2. Having regard to the above, I accept the opinion of the single expert that at this juncture, there needs to be a balance between the children participating in the extracurricular activity and the children developing their relationship with the father. However, if the children are to spend more time in the father's care, then he needs to respect the children's wishes and facilitate their attendance at the activity on Saturday, particularly as they get older. I have no doubt that the father will do so as it was his position in closing submissions that if he had more time with the children, then he would not be averse to taking them to their extracurricular activities.
3. Additionally, and to reduce any future controversy and/or conflict between the parties, I believe that it is prudent that I make an order that neither party be at liberty to enrol the child/ren in any further extra-curricular activities without first consulting the other and obtaining his/her written consent.

Is the father's parenting capacity impaired by reason of family violence, alcohol use and/or mental health issues?

1. The mother asserts that the father "consumed alcohol most days regardless of whether it was a workday or not". She also said:

I have been informed on numerous occasions by [the father's] employees or customers that [the father] often drank alcohol on hot days whilst between jobs, although I do not believe to the extent that would put him over the legal limit. After work or on weekends he would drink in excess of the recommended standard drinks and would rarely have an alcohol-free day.[96]

1. In support of her concerns about the father's use of alcohol, the mother relied on notes of a session between the elder child's allied health professional and the father on 30 March 2021[97]. At that time, the father advised the allied health professional that he did not wish to give up gambling or drinking. The mother relied on the same note to support an assertion that the father is a person who gambles.
2. The father was cross-examined at length on these topics. Apart from the note of the allied health professional referred to above, there was no evidence whatsoever about the extent of the gambling activity undertaken by the father nor was there any evidence that the father's gambling activities (to the extent they existed) presented any risk to the children.
3. Similarly, there was no evidence whatsoever that the father's use of alcohol presented any risk to the children or that the father had ever been intoxicated in the presence of the children.
4. Having said this, the father's evidence with respect to his alcohol use was inconsistent. For example, in his written evidence he said that he will "have a drink for social functions" but otherwise does not consume alcohol regularly.[98] In his oral evidence he said that he might "have a beer after work". I expect the latter evidence to be the more likely position.
5. Even if I accept that the father has "a beer after work", I still find that the father's use of alcohol does not present a risk to the children. I do so for the following reasons:

(a) When the mother initiated proceedings on 5 May 2023, the father's use of alcohol was not a topic addressed by the mother's Notice of Child Abuse, Family Violence or Risk. It follows that at that juncture, the mother could not have been concerned about the father's use of alcohol;

(b) The results of a carbohydrate deficient transferrin test dated November 2024 did not support any finding of "recent or ongoing excessive alcohol use" and the biomarker for carbohydrate deficient transferrin was described as "normal".[99] When asked whether these results provided her with any comfort, the mother became defensive and suggested that she did not understand the test results or the parameters of the same and further, that she did not have enough information to be able to determine whether the use of alcohol is a difficulty for the father. Given that the test results specifically remark that the results are not indicative of "recent or ongoing excessive alcohol use", I reject the mother's assertion that she did not know how to interpret the results;

(c) There was no evidence of any alcohol-related offending on the part of the father;

(d) When the matter was listed before a Senior Judicial Registrar on 17 August 2023, the interim applications resolved absent the inclusion of any order, which restricted the father's ability to consume alcohol in the presence of the children. The mother under cross-examination blamed her then lawyer for the absence of such an order. I reject that assertion in circumstances where as discussed, it was my impression that the mother is a dogmatic person. I have no doubt that had the topic of alcohol consumption concerned the mother, she would have sought to include a restraint in the consent orders or otherwise, argued for the making of such an order before the Senior Judicial Registrar;

(e) The only concern expressed by the mother in the material, which the mother prepared for trial, found form in a letter authored by the mother's solicitors dated 15 September 2023. Therein, the mother complained that the children had reported to her that the father had been "drinking beer" when he spent time with the children on the occasion of Father's Day.[100]

1. There is no evidentiary foundation for any finding that the father abuses alcohol or that he does so in the presence of the children.

1. The mother has asserted that the father was "unmedicated for his ADHD throughout the relationship".[101]She says that because of this condition she "frequently observed [the father] struggling to adequately meet the needs of the children".[102]
2. In response, the father says that:

(a) In 1998, he was diagnosed with ADHD "and prescribed a low dose of dexamphetamine".[103] The father also advised the single expert that he took the medication infrequently when he was about fourteen years of age;[104]

(b) In 2000, when he commenced full-time employment, he ceased taking ADHD medication "as... [he] was able to manage...[his] symptoms and aware of...[his] weaknesses".[105] The father also advised the single expert that he as he got older, he "found...[his] rhythm" and did not take any medication beyond the age of 19 years;[106]

(c) In 2022, he was diagnosed with ADHD by a psychiatrist.[107] His oral evidence was to the effect that he consulted the psychiatrist on one occasion by telephone while he was driving. He said that he did so in circumstances where the mother advised him that if he "didn't get the assessment and get medicated she would divorce me".[108] This being so, the father said in his oral evidence that he advised the psychiatrist whatever was necessary in order to obtain a diagnosis and to thereafter, obtain a prescription for medication.

1. The father also says that the diagnosis does not affect his day-to-day endeavours, nor has it prevented him from operating a successful business. I accept the latter assertion to be so given that the father did indeed establish a successful business (albeit with assistance from the wife).
2. The topic of the father's diagnosis with ADHD assumed some importance during the trial due to the following comments of the single expert:

[The father] has a diagnosis of ADHD and remains unmedicated despite advice to take dexamphetamine from [the psychiatrist]. Any impact of his unmedicated status is difficult to determine, especially as [the father] reports little impact of ADHD on his ability to work. Nonetheless, parenting two young children with special needs is likely to place considerable strain, at times, on his attentional capacity as divided attention among many tasks, often required in parenting, may prove challenging in the absence of medication.[109]

1. The single expert expressed a view that the father ought to take whatever medication is prescribed to him following an updated psychiatric view.[110]
2. On cross-examination by the father's counsel, however, the single expert said that he was less concerned about the children spending additional time with the father (over and above the terms of the August 2023 orders) in circumstances where he learned under cross-examination that the review from the psychiatrist was obtained after one appointment and in the context of the mother threatening to separate from the father if he did not obtain such a diagnosis. The single expert also conceded that:

(a) He did not undertake any assessment of the father's alleged ADHD; and

(b) Given the circumstances in which the psychiatrist diagnosed the father, he was "getting into speculative territory" with respect to the impact of untreated ADHD on the father's parenting capacity.

1. On balance, I am not persuaded that a diagnosis of ADHD (or otherwise) has had any identifiable impact on the father's parenting capacity. When arriving at this conclusion, I am mindful of the following:

(a) The children's teachers observe that the children look forward to time with their father (see below under the heading "Analysis of the mother's behaviour"). I infer that if the father was dysregulated during his time with the children and/or unable to attend to the children's needs, the children would not have expressed such positivity with respect to time with their father;

(b) The mother sought to place no caveat on the children's time with the father when in August 2023, she agreed to an order that the children spend three nights per fortnight with the father. Presumably, and had the mother been so concerned, she would not have agreed to orders in the terms prescribed by the August 2023 orders. Again, and given the mother's dogmatic nature, I do not accept that her will was overborne by the solicitor representing her at the hearing in August 2023.

1. I also bring to account submissions made by the father's counsel to the effect that the father is not a person who is opposed to the provision of medication. I agree with that submission particularly in circumstances where the mother concedes that the father is now faithfully providing the elder child with medication to treat her ADHD. The theme of the father's evidence was to the effect that he does not consider that a diagnosis of ADHD has any effect on his day-to-day functioning, and I agree that if this does become difficult, then the father has demonstrated a preparedness to follow reasonable medical advice. The fact that the father complies with a treatment regime for his own medical condition also gives me confidence that the father will seek the appropriate treatment should his diagnosis of ADHD (if in fact a diagnosis is applicable) becomes an issue with respect to the father's daily functioning and/or capacity to care for the children.[111]

Other events raised by the mother relating to the father's parenting capacity

1. The mother by her written evidence raised complaint that the father did not attend an event in December 2022 and that this was indicative of the father's inability to co-parent and/or to prioritise the needs of the children.[112] In his oral evidence, the father explained that the event occurred soon after the parties' separation in September 2022 and he was in effect, unable to bring himself to attend at the event. In his written evidence, the father said that "[the mother] and I were in the early stages of our separation and the conflict was high at the time". The father went on to say that in these circumstances he tried to avoid events where he and the mother would be together.[113] Whilst this decision was regrettable, it is of nominal relevance to the application to be determined by me. Given the hostility between the parties as evidenced during their oral evidence, I accept the father's evidence that he wished to avoid conflict with the mother so soon after separation.
2. The mother also complained that in December 2022, the father spoke with the children about his decision to move out of the former matrimonial home.[114] Again, such an event is of nominal relevance to the application to be determined by me.
3. The mother asserts that in February 2023, the father permitted the elder child to put her head underwater in a swimming pool in circumstances where she was being treated for an ear infection.[115] The father denies that the elder child did so. He did agree in his oral evidence, however, that he permitted the younger child to put her feet in the pool given it was a hot day. The mother does not complain that the younger child suffered any adverse consequence even if her version of events to the effect that the younger child put her head under water is correct. This being so, I am inclined to prefer the father's evidence over the mother's evidence on this topic.
4. The mother also complains that in about February 2023, the elder child said words to the effect "Mum, when we were with dad and I was sick, dad took us to the pharmacy and asked us what medication we wanted. He let us pick". The mother says that on further enquiry, she learned that the children had chosen panadol whereas the mother says that she had advised the father by SMS Text Message to select nurofen for the children.[116] The father said that he bought the correct medication for the children but that the medication was in two different boxes - namely, a box with the new branding and a box with the old branding. The father said that the children prefer the old branding on account of their autism and this being so, he purchased the same. My assessment of the father generally as well as my assessment of the evidence as discussed thus far does not permit me to find that the father would allow the children to select their own medication.
5. The mother also complains that in April 2024, the father took the children to a funeral. As a consequence, the mother asserted that the children are "distressed that they are going to die now" and complained that the father's behaviour was "beyond appropriate" as the father did not consider the children's needs. The father says that it was in fact a "celebration of life" and that the event involved activities for the children who were attending.[117]
6. Notwithstanding the father's description of the event, the mother maintained her criticism of him during her oral evidence. She did so despite her acknowledgment that some months later, she took the children to a morgue to visit a friend's relative who had passed away.[118]
7. The mother despite being pressed by the father's counsel, was unable to identify the hypocrisy of the position adopted by her. The mother's inability to consider the hypocrisy of the position adopted by her was demonstrative of the overly critical prism through which she views the actions of the father.

1. The mother asserts by her counsel's case outline that the father denigrates her.
2. The text messages referred to by the mother in her affidavit filed on 6 December 2024 certainly demonstrate hostility between the parties. The mother also says that the father told her to "shut up" when she tried to speak with him in February 2023 about the elder child's dietary requirements subsequent to a procedure.[119] Although the father was not cross-examined with respect to that allegation, the hostility of each party demonstrated against the other under cross-examination causes me to infer that each of them has experienced difficulty treating the other parent in a respectful way including in the presence of the children.
3. I am hopeful that by reason of the orders I make, which provide for handovers of the children to occur primarily at their school, the opportunity for the children to be exposed to each parent's denigration of the other will be reduced.

1. The mother's affidavit filed on 6 December 2024 was devoid of any positive reference to the father's parenting of the children or his relationship with the children save for one paragraph wherein the mother says that the father supported her during a dispute with the younger child's school in 2022 about whether that school was able to cater for her needs.[120] The absence of any positive commentary about the father or his parenting of the children and/or his relationship with the children is consistent with my impression of the mother's animus towards the father.
2. In the paragraphs below, I set out the steps, which the mother took in the period subsequent to the making of consent orders in August 2023 in an effort to gain a forensic advantage in these proceedings.

1. At paragraph 63 of her affidavit filed on 6 December 2024, the mother referred to notes prepared by the elder child's allied health professional in 2021. As submitted by counsel for the father, and on account of their historical nature, the notes prepared by the allied health professional provide me with limited assistance with respect to any determination about the children's best interests. However, I agree that the way the mother sought to use the notes for the purposes of trial is instructive of the attitude, which she adopts vis-à-vis the father.
2. For example, the mother relied on notes dated 2 February 2021 and 30 March 2021 and referred to the following extracts:

2 February 2021 - "[Allied health professional] tried to get Dad to participate by getting [the elder child] to ask for advice when missing target and holding items for her. Dad's face did not change the whole time - no joy, connection or true engagement.

30 March 2021 - [The elder child] and her Dad struggled to have novelty and play...[Allied health professional] was very honest and explained that he needs to work out his priorities and realise that his actions now will affect his children in the long term. Dad stated that he did want to stop drinking or gambling (does not feel like he gambles that much) and he will work all the time.

1. However, when you read the whole summary of the appointment on 2 February 2021, it is apparent that the mother has omitted the following:

(a) The opinion of the allied health professional that the elder child was "very happy and interactive". The therapist identified that the elder child followed instructions "the whole time" and expressed a suspicion that "her behaviour change happened due to dad being in the room";

(b) The father's efforts to get guidance from the therapist in the face of what was then his limited involvement of the children. Particularly, the father expressed some insight that he did not know how to interact with the children in circumstances where he had been working seven days a week, getting up in the middle of the night for work, and was not spending any time with the children between Monday and Friday.[121]

1. The mother's trial affidavit also omitted any reference to:

(a) The allied health professional's notes dated 16 March 2021 wherein she recorded that the elder child and the father had "a lot of success" when playing a "team-building and trust building game";[122]

(b) The allied health professional's notes with respect to the session on 30 March 2021 wherein the therapist recorded that the father "had a positive attitude when he came into the session" and otherwise referred to the positive interaction between the elder child and the father during the session.[123]

1. On cross-examination by the father's counsel, the mother said that any positive observations in relation to the father which were recorded by the allied health professional were of "limited relevance" to her case. I agree with the submission made by the father's counsel that the mother's failure to identify those parts of the allied health professional's notes, which referred to a successful interaction between the elder child and the father and/or a positive attitude on the part of the father is emblematic of the mother's steadfast refusal to concede any positive aspect of the father's parenting of the children. Indeed, it was my impression of the mother's evidence that her hostility towards the father is so overwhelming that she is simply incapable of conceding that the father has any positive attribute. The mother's animus towards the father is also highlighted by her counsel's cross-examination of the father with respect to those parts of the allied health professional's notes, which portrayed the father in a negative way. The mother's counsel persisted with such cross-examination despite the expression of a concern held by me that such cross-examination provided me with limited assistance with respect to any determination of the children's best interests under Part VII of the Act.

Notes of Ms R, psychologist and entreaties of the children's school

1. The children had been attending on Ms R, psychologist. The mother says that the children "ceased attending upon... [Ms R] after she voluntarily withdrew her service following... [the father] having made contact with her during the conduct of these proceedings".[124] Whilst this might be so, communications between Ms R and the mother in early November 2023 identify that the mother had requested Ms R to provide a report to the effect that the elder child had developed symptoms of "further emotional dysregulation" after she recommenced time with the father in August 2023.[125] Ms R declined to provide such a report and said as follows:

...I cannot objectively say (beyond the concern of the meds which as you have said is fixed by him using the Webster pack) that my observations or interactions have noted tje [sic] beyond obviously what you report, which may not get you far in the legal system.[126]

1. Whilst I do not need to make a finding about the precise reason why Ms R withdrew her services, I am able to find, by reference to email communications between the mother and Ms R, that the mother was making considerable effort to obtain a report from Ms R, which would support the mother's application in these proceedings.
2. In addition to Ms R, it seems that the mother also sought assistance from staff at the children's school to create a narrative to the effect that the children's behaviour was dysregulated following time spending with the father and/or that the children were reluctant to spend time with the father. Despite the mother's entreaties, during an interview in April 2024, the head of the primary school advised the single expert as follows:

...the mother has told the staff that the children are not happy to spend time with the father. [The father] has been observed collecting the children from school at changeover times, and the children had never been observed exhibiting reluctance to go to the father's care and have spoken about looking forward to spending time with him. No behaviours of concern have been noted at times of changeover.[127]

1. The examples referred to above demonstrate that neither Ms R nor staff at the children's school supported the mother's requests to produce reports and/or support a narrative that the children were not happy to spend time with their father and/or were dysregulated following changeover.

1. The father says that on 15 May 2023 he decided to stop calling the children by telephone as the mother would not provide the children with any privacy. Particularly, the father says that:

(a) On 3 April 2023, the mother interrupted his telephone call with the children and said "talk to Dad he's actually talking today and making an effort";[128] and

(b) In May 2023, he observed the mother during a facetime call setting up her own phone so that it might record the interaction between the children and their father.[129]

1. On 10 May 2023, the father sent the mother a message via the Our Family Wizard application in the following terms:

Please respect my request for privacy when I'm calling the children, I can see that it appears you are recording our conversation with your phone in the reflection of the cupboards. Thanks.[130]

I have received your email. You are aware I record every interaction you have with myself and the children due to past issues and concerns for our wellbeing, and to ensure I have their best interest as the priority.[131]

1. I do not agree that it was in the children's best interests to observe their mother recording telephone conversations between them and their father. Instead, such an action would have conveyed to the children a message that their father's behaviour was of concern such that it had to be recorded. I also find that the mother recorded the discussions to obtain some forensic advantage and to collect information, which she perceived might assist her in these proceedings. Such a behaviour would be consistent with the mother's efforts to obtain the assistance of the children's psychologist and the children's school subsequent to August 2023 so that she might prosecute a narrative that the children are resistant to spending time with the father and/or dysregulated following time spending with their father.

Complaints by the mother as raised by her solicitors and public denigration of the father

1. As discussed above, it was the mother's oral evidence that she was not satisfied with the terms of the orders made with her consent in August 2023. This being so, the mother embarked on a campaign of criticism of the father. For example, and having not seen the children since March 2023, the father spent time with the children in August 2023 from 10.00am to 3.00pm. The paternal grandmother was in attendance on that occasion and appears to have relished the moment by hugging the children and taking photographs of them. Regrettably, those actions were met with a letter from the mother's solicitor in the following terms:

We are instructed by our client that on the weekend [in] August 2023, your client's parents were present when he spent time with the children. The children were distressed by this and indicated to our client that the paternal grandmother would not stop hugging them and taking photographs of them.

...

It causes our client concern that your client appears incapable of spending time with the children without another person present.[132]

1. Putting to one side the merit of the paternal grandparents' attendance at the first period of time spending in six months, the letter highlights the incredibly negative view, which the mother adopted subsequent to the consent orders of August 2023. The letter also evidences the mother's desire to document every perceived misstep on the part of the father in an effort to gain an advantage in these proceedings and/or obtain a parenting order, which she considered to be more appropriate.
2. A further example relates to the father's attendance at a Father's Day event at the children's school. The father says that he attended at the Father's Day breakfast in 2023 and for reasons not known to him, the mother was also in attendance. The father says that after he had breakfast with the children and attended at the school assembly, he left at about 10.30 am. Later that day, the mother posted a photograph of the children together with their teachers on Facebook. The mother posted the following words with the said photo:

These two teachers are amazing!! When all the other kids dads were there (and didn't leave after the free breakfast), they stepped in so she didn't feel left out.[133]

1. The mother did not accept that her Facebook post was overly critical of the father. Instead, the mother submitted that due to the father operating his own business, he could have stayed for an extended period. It was also my impression that the mother was not remorseful in any way for the Facebook post made by her despite the obvious inappropriateness of disparaging the father in a public forum. On cross-examination, the mother simply focused on the father's failure to stay at the children's school for an extended period of time notwithstanding that on his version of events, he had commitments with respect to the operation of his business. The mother's failure to consider her behaviour is consistent with the single expert's findings on psychometric testing to the effect that the mother had a tendency to "avoid negative or unpleasant aspects of herself".[134]

Effect of the mother's behaviour on the children

1. As a consequence of the above actions, I find that the mother was unable in the post-separation period to shield the children from her negative views of the father. Further, and even if this view is wrong, the mother's presentation in the witness box leaves me in no doubt that she despises the father and/or has no regard for the role, which the father might play in the children's lives.
2. As discussed above, the children spent no time with the father during the period March 2023 to August 2023 at which time the mother agreed to orders permitting the children to spend unsupervised time with the father.
3. In July 2023, and having not seen her father for about four months, the younger child attended on her school counsellor. At that time, the counsellor recorded the following:

[The younger child] shared openly her feelings and demonstrated an understanding of her mother's perspective regarding the separation

[The younger child] spoke about her evolving emotions in relation to her parents' separation. She mentioned that she still finds it difficult not seeing her father as often as she would like. She shared that she has regular conversations with her mother about her feelings, with her mother explaining that her father's absence is for their safety and well-being. [The younger child] has internalized [sic] this as her father needing to improve his behaviour before being allowed to see them [sic] again.[135]

1. As a consequence of the younger child's disclosures to the counsellor, the latter records that she "explored coping strategies that [the younger child] could utilize [sic] to manage her emotions during this challenging period".[136]
2. In the days prior to the interim hearing in August 2023, the mother also communicated with the elder child's psychologist, Ms R, about the elder child's negative behaviours. Particularly, and in mid-August 2023, the mother sent the psychologist a text message, which suggested that the cause of such behaviour was due to the father's attempt to visit the school again.
3. Three days later, the psychologist had a session with the elder child by electronic means and her notes record that the mother attended at least a part of the session. The notes also record the following:

Discussed [negative behaviours], with [the elder child] and tried to ascertain particular times she might notice that she does this. One such time she noticed it she was at school. Discussed ideas and strategies to help.

...

[The elder child] was able to tell me that "mum worked it out since all the stuff with dad was happening" that she'd been [exhibiting negative behaviours] more.[137]

1. I find by reference to the notes of the elder child's psychologist and the younger child's counsellor that both children were exposed to their mother's views of the father and as a consequence, came to view their father as someone who needed to improve his behaviour. At least in the case of the elder child, she was influenced to form a view that her negative behaviours had something to do with her father despite the fact that in mid-August 2023, being the day on which the mother attributed the elder child's behaviours to the father's attendance at her school, she had not seen her father for five to six months.
2. I find that the mother has deliberately and constantly exposed the children to her views, thus encouraging the children to develop a narrative that their father is a risk to them. I find that the mother's actions have caused the children psychological harm.
3. In addition to these events, the father identifies that in early September 2023, he advised the children that they would commence spending overnight time with him. In response, the father said that the younger child said, "no you won't" and "mum said that won't be happening".[138] I accept the submission that a five-year-old child would not have said these things absent any influence of the mother. It again highlights the influence, which the mother brought to bear on the children.
4. In October 2024, the younger child reported to her school counsellor that her father is "unsafe". Particularly, the counsellor records as follows:

We worked on a drawing exercise, where she drew her "safe and unsafe" place. [The younger child] identified Dad's home as the "unsafe" place as he does not give her the right food and she does not have her own room. Additionally, [the younger child] identified mum's home as the "safe" place because she does have her own room and mum does feed her the right food. [The younger child] also mentioned that her parents broke up because dad is not a good person.[139]

1. In the same month, and in response to communications received from the children via their iPad when in the father's care and a photograph attached to those communications, the mother said as follows:

Children: Love you (emoji).

Mother: Ohhh baby girls you look so sad.

Are you ok and safe?

Children: Yeah we are in our room.

Mother: Is dad home?

Children: Yes.

Mother: Love you girls sooo much.

1. After additional exchanges, the mother goes on to say to the children:

Mother: Love seeing my babies face. You will need to call me.

Turn volume down if your [sic] scared.

1. The father says that the mother's use of the word "safe" is consistent with the mother's behaviour at changeovers at which time she "tell them to be 'safe' and tell them she will miss them terribly".[140] The mother conceded under cross-examination by the father's counsel that at changeovers, she uses the word "safe" and that perhaps she ought to reconsider the use of that word. The mother also conceded that at handovers she says words to the effect "you are resilient, you will get through it". On questioning by the single expert, the mother conceded that on occasion, she has advised the children that "she was sorry the father was 'not making good choices'".[141] By using these words, the mother was conveying an impression that their time with the father was an ordeal, which the children had to endure and/or that the father is a person who is unsafe and/or is a person who does not make good choices.
2. The younger child also advised a staff member in February 2024 that her father was not a "good person" and that her mother had made comments to this effect because "he doesn't believe there's anything wrong with me and does not give me my medication".[142]
3. Again, I find by reference to the above that the mother has caused psychological harm to the children.

Section 60CC(2)(a) - The arrangements that would promote the safety of the children and each person who has care of the children

1. I have set out above my findings. I have concluded that the father does not present a risk to the children in the manner asserted by the mother. In fact, save for the negative consequences of a poor relationship between each of the children's parents, I have found that the father presents no risk to the children whatsoever. Instead, as referred to above, I find that the mother's efforts in the period subsequent to separation to include the children in the parental conflict has caused the children psychological harm.
2. The children's school has not reported that the children's time with the father has resulted in any deficits with respect to their functioning at school. In this regard, the single expert says as follows:

On the assumption that the feedback from school in particular, where the children spend a significant amount of time during the week, including after-school care, reflects a general lack of disruption to their functioning under the current living arrangements, it would appear that time with the father does not present the risk of safety the mother purports.[143]

1. I agree with the view of the single expert that the current time spending arrangements do not present any risk to the children.
2. I am also concerned about the following:

(a) If I accede to the mother's application to reduce the children's time with the father, then this will "cement... [the children's negative view of the father] especially given [the mother's] tendency to comment on the father's parenting in a rather negative way to the children";[144]

(b) If I grant the orders sought by the mother then it will inhibit the children's independent relationship with the father, which the single expert says is "developing".[145] If I do so, it will "further exacerbate the children's view of the father as unimportant, and men in general as fun, not serious, safe parenting figures";[146]

(c) If I grant the orders sought by the mother, then the opportunity for the mother to further influence the children and prohibit them from developing their own view of the father will be enhanced.

1. On balance, and for the reasons described above I conclude that the current time arrangements between the children and their father has not disrupted their functioning or development. For the same reason, I decline to make an order reducing the children's time with the father.
2. The question, which now falls for consideration is whether it is in the children's best interests for the children's time with the father to increase in the manner proposed by the father or otherwise. I note that the father's application is for the children to spend five nights per fortnight with him from the conclusion of school on Friday to the commencement of school on Wednesday.
3. On cross-examination, the single expert said that he was "more open minded about the father spending increased time with the children during the school week" given the evidence with respect to the manner in which the father was diagnosed with ADHD in 2022 (supra). He did suggest, however, that any increase to say five nights per fortnight ought to be gradual given the children's disabilities.
4. With respect to school holiday periods, it was the advice of the single expert that again, there be a gradual increase in time such that by 2026 they be spending time with each of their parents on an equal time basis.
5. For her part, the Independent Children's Lawyer has since the commencement of trial promoted an outcome to the effect that the children spend four nights per fortnight with the father as and from the commencement of Term 2 in 2025. Thereafter, and after a period of gradually increasing time, the Independent Children's Lawyer promotes an outcome to the effect that the children spend half of all school holiday periods with each of their parents as and from the Term One school holiday period in 2026.
6. On balance, I will make orders similar to the orders promoted by the Independent Children's Lawyer because I am concerned that the parties do not have the co-parenting capacity to successfully navigate an arrangement, which will see the children spending five nights per fortnight with their father. I am less concerned about an arrangement, which will see the children spend four nights per fortnight with their father because it is only marginally more than the time already afforded to the children and it was an arrangement, which was readily supported by the single expert under cross-examination.

Section 60CC(2)(b) - any views expressed by the children

1. The children are aged nine years and seven years respectively. In a manner similar to the single expert, I agree that given the children's ages and complex needs, caution is required when giving any weight to the children's views. I am also concerned that placing weight on their views would overlook the influence to which the children have been subjected by the mother.
2. Irrespective of the children's views, I am satisfied by reference to the observations of interaction between the children and their father and the disappointment, which the younger child expressed to her counsellor when the mother withheld her from spending time with the father that the children have a warm relationship with their father. For the reasons discussed above, I consider it is appropriate to make orders, which will enable that relationship to develop.

Section 60CC(2)(c) - The developmental, psychological, emotional and cultural needs of the children

1. The children's teachers were interviewed by the single expert on 5 April 2024. The elder child was described as doing well at school. Further, the observations of staff at the elder child's school were in contrast to the mother's observations. Particularly, the single expert's interview records the following:

[The elder child] was described as doing well at school.... There was some concern related to the purported high level of need the mother conveys to the school regarding [the elder child], which is not observed at school. For example, [the mother] has reported to the school that [the elder child] is frequently anxious and stressed at home, but this is not observed at school. The staff believe [the elder child] copes well at school but can be defiant and has been observed to contextualise or rationalise her behaviour in terms of ADHD/ASD diagnoses.[147]

1. Similarly, the younger child was described as "doing very well at school and 'amazing'".[148]
2. At the time of interview of school staff, the children had been spending overnight time with the father for a period of about seven months and alternate weekends with him for a period of about five months.[149]
3. For these reasons, and as discussed above, I do not consider that the children's current time with their father (being three nights per fortnight) has had any negative impact on their functioning or development. Further, and for the reasons described above, I consider that it will benefit the children from an emotional and developmental perspective to increase their time with the father.
4. Neither parent made any submission with respect to the children's cultural needs.

Section 60CC(2)(d) - The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children's developmental, psychological, emotional and cultural needs

1. For the reasons discussed above, I do not consider that the father presents any risk to the children. I am satisfied that the father is a person who is able to provide for the children's developmental, psychological and emotional needs.
2. I am concerned, however, about the mother's inability to shield the children from her negative views of the father. If I make orders acceding to the mother's application, then the relationship between the children and their father will be prejudiced. I consider it is important to safeguard that relationship by making an order for additional time between the children and their father.

Section 60CC(2)(e) - The benefit to the children of being able to have a relationship with the children's parents, and other people who are significant to the children, where it is safe to do so

1. The orders which I will make will allow the children the benefit of maintaining a relationship with each parent. With respect to the father, the orders will allow the children the benefit of additional time with their father including during school holiday periods.

Section 60CC(1)(b) and s 60CC(3) - Right to enjoy Aboriginal or Torres Strait Islander culture

1. These sections do not fall for consideration given the factual background of these proceedings because the children are not Aboriginal or Torres Strait Islander children.

Section 60CC(2)(f) - Anything else that is relevant to the particular circumstances of the children

1. No other consideration was addressed by the mother, the father or the Independent Children's Lawyer.

1. The evidence demonstrates that conflict between the parents is high. The presentation of each party in the witness box also confirms in my mind that each party has an intense dislike of each other. When making this comment, I have regard to submissions by the mother's counsel that the father mistrusts the mother and that this mistrust is evidenced by the father's decision to send a food log to the elder child's dietician directly as he was "concerned that... [the mother] may have amended my responses".[150] The parties' mistrust of each other was also detected by the Deputy Principal at the children's school who advised the single expert that "the parents often disagree about the 'best plan of action'".[151]
2. Notwithstanding this, the father's counsel made a submission that the communication between the parties whilst not great, is adequate.
3. In response to a question by me with respect to the mother's animus towards the father, the mother's counsel submitted that messages exchanged by the parties on the "Our Family Wizard" application was demonstrative of the mother's preparedness to keep the father advised about the children's medical needs and medical appointments. To an extent this is so but from the father's perspective, the use of the application is "merely another avenue for drama".[152]
4. The single expert says as follows with respect to the parties' relationship:

[The mother], possibly because she has not been in receipt of regular psychological support for many years, appears to have a tendency to become rather hostile to those who challenge her views with regard to the children. This itself may extend to the co-parenting relationship. Furthermore, [the father] has self-reported anger control issues, and to a degree suspiciousness, which may confound the co-parenting relationship.[153]

1. I am concerned that the mother engaged the services of an "autism specialist" in September 2023[154] without seeking the father's consent and/or otherwise advising him. The mother's unilateral engagement of the "autism specialist" is particularly notable given that she did so during the course of contested proceedings.
2. By her affidavit filed on 15 January 2025, the autism specialist advised the Court that in the course of a 15-month period, she only had one interaction with the father. However, she also said "we didn't attempt to reach out...given we didn't have his details and [the mother] was the parent who engaged in our services".[155]
3. The father says that he only became aware that the mother had engaged the "autism specialist" after his solicitor inspected materials, which had been returned pursuant to subpoena.[156] Given the mother's apparent desire for the parties to adopt the same strategies in their respective households to address the children's behaviour, I find it to be incredible that she did not advise the father of the specialist's engagement. I also consider it to be incredulous that the mother did not advise the father of the specialist's engagement in circumstances where one of her primary complaints in this proceeding is that the father is unable to manage the children's behaviour. If one assumes that this concern is genuinely held, then it is beyond belief that the mother would not wish for the father to engage with a professional assisting the children.
4. In order to avoid the father from being excluded with respect to major long-term decisions and/or to avoid the risk that the mother will unilaterally engage professionals for the children, I have formed a view that it is in the children's best interests for each of their parents to hold equal shared responsibility for them. When arriving at such a conclusion, I take into account the following:

(a) The mother consented to an order to the effect that the parties have equal shared parental responsibility for the children in August 2023. She did not identify by her affidavit filed on 6 December 2024 that such an order caused her or the children any difficulty;

(b) The father said that he would be "flexible" with respect to schooling and was open to the children attending a secondary school in the mother's area and provided that there was no increased cost to him; and

(c) The father raised no issue with respect to the mother's desire to raise the children in the Christian tradition.

1. I will also make orders, which will ensure that:

(a) The mother keeps the father advised of the identity of the children's treating medical practitioners and allied health professionals;

(b) The father will be able to be involved with the children's medical practitioners and to obtain information from them;

(c) The father can readily engage in assessment processes and provide information to medical professionals and allied health professionals.

1. I am hopeful that the orders to be made by me with respect to parental responsibility will avoid the possibility that the mother will, for example, engage a psychologist for the children in the same way as she engaged the "autism specialist" absent the father's knowledge or consent.

1. The mother seeks an order that changeovers, which do not occur at school occur at the Suburb U Police Station.
2. The father and the Independent Children's Lawyer seek an order that handovers continue to occur at the fast-food restaurant identified in the August 2023 orders, which were made with the consent of the parties.
3. The mother does not by her affidavit filed on 6 December 2024, express any concern about the father's conduct at changeovers. Further, I consider the mother's desire to alter the changeover location from the fast-food restaurant to a police station confusing in circumstances where the mother's written and oral evidence confirmed that the elder child was distressed as a consequence of the significant involvement of police on the evening in September 2024.[157] If the child was as distressed as asserted by the mother then it defies commonsense that the mother would wish for handovers to occur at a police station.
4. Simply, there is insufficient evidence available to persuade me that it is in the children's best interests for a changeover to occur at a police station. In arriving at this conclusion, I am also mindful of the opinion expressed by the single expert in the following terms:

I would have reservations, really, about the benefit for the children in that regard. It would lead to, I think, again, speaking to the literal associations that children with ASD tend to develop - it would engender a sense that - yes - the police need to be around when the father is - when they're entering and leaving the father's care. It sets up an association that the father is dangerous even. Children often associate the police with crime and not just safety, but actually perpetrating crime, particularly younger school-age children - primary school-age children.

1. For these reasons, I will make an order that handovers occur at the children's school if school is in session and otherwise, at the fast food outlet located at F Street, Suburb G in the State of New South Wales.

1. The mother seeks orders in the following terms:

(a) That both parties be "at liberty to call the children whilst the children are in the other's [sic] parties' care, and that the father shall make such calls on Kids Messenger and the Mother shall make such calls on the children's smartwatch"; and

(b) That the father "shall ensure that the children have access to their smartwatch at all times whilst spending time with him, and the father shall facilitate the children communicating with the mother whilst they are in the father's care as requested by the children".

1. The mother's affidavit material was replete with criticism of the father with respect to his refusal to permit the elder child to use a smart watch whilst in his care. The mother says that the father deliberately destroyed the watch by placing it in the wash.[158] She also says that the father has deliberately left the smartwatch at a service station during the children's time with him and she has otherwise engaged the services of police to have the smartwatch returned.[159] The mother agreed under cross-examination that the smartwatches had been a source of conflict between the parties. On the father's evidence, the watches had also been a source of conflict between him and the children.[160] The father was suspicious of the children's use of the watch due to a concern that the mother used a GPS location tracker on the watch to monitor his activities with the children and/or a microphone in the watch to record him and the children.[161] The father also says that on occasion, the smartwatches have caused conflict between the parties because the mother has tried to contact the children on the same unbeknown to him.
2. It is the mother's case that the children rely on their smartwatches and "were attached to them as a coping mechanism and positive support to some of their daily functions".[162]
3. Notwithstanding the mother's application, her oral evidence was to the effect that:

(a) The children are not permitted to use the smartwatches during school hours; and

(b) The children have not used smartwatches at their father's residence since about late 2023.

1. On balance, and in circumstances where the mother and the father agree that the use of the smartwatches has been a source of conflict between them, I decline to make an order to the effect that the father ensure that the children have access to their smartwatch at all times whilst spending time with him. Given the animus of the mother towards the father, I am concerned that any order to the contrary will simply permit the mother to disrupt the children's time with the father and for conflict to ensue. Further, and given that the children can cope without the watches during the school day, I am satisfied that the children can similarly cope without them when in the care of the father.

1. The mother promotes an order, which will suspend all time between the children and their father between 4.00pm on Christmas Eve and 4.00pm on Boxing Day. The mother does so in circumstances where:

(a) The mother says that the children "thoroughly enjoy spending time" with the maternal family and extended relatives on the occasion of Christmas Day;[163]

(b) The mother says that Christmas Day is an occasion of significance to her but not to the father;

(c) The father's partner gave oral evidence that the father and paternal family members have for the last three years celebrated Christmas the week prior to Christmas Day. The mother by her counsel says that this is consistent with her evidence.

1. For his part, the father promotes an order that in each alternate year, the children spend time with each of their parents as follows:

(a) From 3.00pm on Christmas Eve to 3.00pm on Christmas Day;

(b) From 3.00pm on Christmas Day to 3.00pm on Boxing Day;

1. The mother's evidence and indeed the evidence of the father's partner need to be seen in the following context:

(a) The father says that in 2022, no agreement was reached with respect to the children's time with him on Christmas Day. This being so, the children's time with him was restricted to time on Christmas Eve;[164]

(b) In 2023, the children's time with the father was regulated by orders made on 17 August 2023 to the effect that the children spend time with him from 3.00pm on Christmas Day to 3.00pm on Boxing Day;[165]

(c) No agreement was reached with respect to time between the children and their father on the occasion of Christmas Day, 2024.[166]

1. Ultimately, I am not persuaded that it is in the children's best interests to never spend time with their father on the occasion of Christmas Eve for the balance of their minority. Accordingly, I will make orders in the terms promoted by the father and supported by the Independent Children's Lawyer (albeit the Independent Children's Lawyer promotes different commencement and conclusion times).
2. The mother promoted an order that the children spend time with her on the occasion of Mother's Day from 9.00am to 5.00pm and a similar time with the father on the occasion of Father's Day. The Independent Children's Lawyer promotes a similar order.
3. The father sought an order that the children spend time with him on Father's Day for the entirety of the relevant weekend. The father's counsel did not make any submission about why such an order is appropriate and I have concluded that such an order is not in the children's best interests as it would disrupt the rotation provided by the primary time spending arrangements. Accordingly, I will make orders with respect to Mother's Day and Father's Day in the terms promoted by the mother and the Independent Children's Lawyer.
4. With respect to the children's birthdays, the father and the Independent Children's Lawyer each promoted orders that would enable the children to spend time with each parent on their occasion of the children's birthdays. Although counsel for neither party or the Independent Children's Lawyer made specific submissions, I consider that the orders promoted by the Independent Children's Lawyer are practicable and will ensure that each child will be able to spend time with each of their parents on the occasion of their respective birthdays.
5. Neither the mother nor the Independent Children's Lawyer promoted orders between each child and her parents on the occasion of Easter. The father made a brief reference to the topic at paragraph 280 of his Affidavit filed 20 December 2024. Otherwise, the father was not cross-examined with respect to his proposal for Easter nor was it the subject of any submission. For these reasons, I decline to make any order between the children and each parent on the occasion of Easter.

1. The father promotes an order that if the mother is unable to personally care for the children for any overnight period, then the father shall have the first option to care for the children. The mother seeks an order in similar terms with respect to the father. Neither party's position was supported by the Independent Children's Lawyer.
2. I decline to make such an order. I am confident that each parent can make appropriate arrangements for the children when in his/her care and I do not propose to circumscribe the autonomy of either parent with respect to decisions, which may be made by either of them with respect to the care of the children. I am concerned that to do otherwise will create further conflict between the parties.

Telephone contact between the children and each parent

1. The father promotes an order that each parent ensure that he/she facilitate any reasonable telephone or video call contact between the other parent and the children as requested by the children whilst the children are in his/her care.
2. The mother promoted an order that each parent be at liberty to call the children when the children are in the other parent's care.
3. Given the hostility between the parties, I am concerned that an order in the terms promoted by the mother will simply cause disruption with respect to the children's time with the father. He ought to be able to enjoy his time with the children absent unnecessary disruption by the mother. Similarly, the mother ought to be able to enjoy time with the children absent unnecessary disruption by the father.
4. I will, however, make orders to the effect that if either child expresses an opportunity to do so at any reasonable time, then the parent with the care of the children shall facilitate the same.

Restraint in relation to the engagement of the children's "autism specialist"

1. The children's "autism specialist" was an unimpressive witness. When making that assessment, I bring to account the fact that the autism specialist only started practising in September 2023. Her oral evidence was to the effect that she had no experience working with separated families or families involved in litigation in this Court.
2. I accept the submission made by the father's counsel and the Independent Children's Lawyer that it is in the children's best interests to restrain the mother from facilitating the children's ongoing attendance on the autism specialist for the following reasons:

(a) The specialist's evidence was odd. She deposed to receiving certain court documents including the mother's case outline but under cross-examination, said that she had only received the report of the single expert;[167]

(b) The specialist expressed a view about whether the father was or was not inhibiting the children's progress despite the fact that she had only discussed the children's progress with the father on one occasion. To this extent, the specialist seemed to accept the mother's version of events without challenging her about their accuracy or otherwise;[168]

(c) The specialist sought to criticise the single expert and his findings when it is clear to an objective observer that the specialist did not have the qualifications to do so. The specialist asserted that she had a "degree in autism" when in fact, she held a certificate in Autism from a university. The specialist failed to explain how this certificate assisted her to critique the opinions expressed by the single expert who is a child psychologist and child psychotherapist.

1. Regrettably, and by the manner in which she has conducted herself, the autism specialist has caused the father to lack confidence in her impartiality and her ability to assist the children in an objective manner. It is in the children's interests that their father has confidence in their treating medical practitioners and allied health professionals.
2. Accordingly, I will make orders for the injunctive relief sought by the father and the Independent Children's Lawyer.

Application for a referral of the elder child to a paediatric psychiatrist

1. The father seeks an order requiring the parties to make an appointment with the elder child's paediatrician for the purposes of obtaining a referral to a paediatric psychiatrist. This is so that the elder child's medication might be reviewed.
2. The application is made in circumstances where, as discussed above, the elder child's school and the single expert have expressed concern about the level of the child's Autism Spectrum Disorder diagnosis. In addition, the single expert said as follows in his written evidence:

Given [the elder child] is taking an anxiolytic medication (fluoxetine), in addition to stimulant and sedative medication, a child psychiatry review appears very timely. It is quite unusual for a child of [the elder child's] age to be taking such a combination of medication, and a psychiatric review would afford an opinion based on [the elder child's] current functioning.[169]

1. Under cross-examination, the single expert also conceded that in circumstances where the original diagnosis of an autism spectrum disorder was made absent input from the father with respect to his observations of the elder child's behaviour, it is now timely for there to be a psychiatric review. Particularly, he said that he "would struggle to see" why a child of nine years who has been on "powerful medications for quite some time" would not be the subject of a psychiatric review. The single expert's opinion was unequivocal saying that a review is "highly necessary" and "highly advisable".
2. For these reasons, and notwithstanding the mother's objection, I will make orders in the terms sought by the father for the elder child to undergo a psychiatric review.

Medical Issues and Administration of medication

1. Each parent seeks orders regulating the making of medical appointments for the children and compliance with recommendations, which may be made by the children's treating professionals from time to time. I will make orders regulating the same.
2. For her part, the mother seeks an order that the father be restrained from attending any appointments for either of the children.
3. For reasons, which will be obvious from this Judgment, I do not consider that it is in the best interests of the children for the father to be excluded from attending appointments for the children. The single expert has made it clear that that the children's treating professionals would benefit from having input from the father with respect to his observations of the children's behaviour and his experiences in his household. It would be antithetical to the children's best interests to make an order in the terms sought by the mother.

1. The Independent Children's Lawyer promoted orders to the effect that:

(a) Each parent be at liberty to communicate directly with the children's schools, sporting bodies and medical practitioners and to obtain any information and/or documents about the children's progress;

(b) Each parent keep the other parent advised of the names and contact details of the children's treating medical practitioners and allied health professionals;

(c) Each parent be at liberty to attend at parent/teacher interviews, school concerts, assemblies and the like and obtain any information, which parents are ordinarily entitled to receive.

1. The father's proposed orders are consistent with the orders promoted by the Independent Children's Lawyer save as to form. For her part, the mother did not promote any orders, which would permit the father to obtain information from the children's school. For the reasons discussed in this judgment, I consider is it important for the father to know as much about the children's welfare and development as possible. Accordingly, I will make orders in terms similar to those orders promoted by the father and the Independent Children's Lawyer.

1. The father sought an order that the parties be at liberty to apply for the issue and/or renewal of an Australian Passport for the children. The mother sought an order in similar terms albeit the mother did not promote an order that the father be permitted to remove the children from the Commonwealth of Australia for the purposes of travel. The Independent Children's Lawyer did not promote an order to the effect that the children be permitted to travel overseas with either parent.
2. As might be expected, the parties do not agree, which party will hold the children's passports. Given the hostility between the parties, I will make an order in terms sought by the father to the effect that the passport be held at the Registry of the Court.
3. The mother by her written evidence said that she proposes to take the children on a holiday to the United States of America. The father did not oppose such travel provided that he be given a similar opportunity to do so. Given my finding to the effect that the father does not present any risk to the children, I conclude that there is no good reason to preclude the father from enjoying time with the children overseas should the father wish to travel with them.
4. I will make an order that each parent be permitted to remove the children from the Commonwealth of Australia for the purposes of travel for a period of up to twenty-one (21) days per annum.

1. The orders set out at the commencement of these reasons are those that most capably meet the children's best interests.

LEGAL PRINCIPLES APPLICABLE TO THE COMPETING FINANCIAL APPLICATIONS

1. Part VIII of the Family Law Act 1975 deals with financial matters relating to parties who are or have been married to one another. Section 79(1) authorises the court to alter the property interests of the parties to a marriage. Part VIIIB provides specific provisions enabling the splitting of superannuation between spouses.
2. The major provisions relating to marital property division are contained in ss 79(1), 79(2), 79(4), and 75(2) of Part VIII of the Act. Pursuant to s 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a marriage in relevant property.
3. Pursuant to s 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words "shall not" in the relevant section.
4. Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides that seven matters [in paragraphs (a) - (g)] are to be considered, as relevant.
5. Paragraphs (a), (b), and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
6. Paragraph (e) directs the court to consider a list of matters contained in s 75(2), which are germane to spousal maintenance, or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
7. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
8. Until 2012, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled. The process entailed a four-step process, described by the Full Court as follows:

(a) Identification and valuation of the property of the parties;

(b) Identification and evaluation of contributions to the property (including property no longer owned by the parties) - the contribution phase - s 79(4)(a) to (c);

(c) Identification and assessment of the various matters in s 79(4)(d) to (g) including to the extent they are relevant, the matters in s 75(2) - the prospective needs phase; and

(d) Considerations of justice and equity.[170]

1. The general applicability of this four-step process was recast in the light of what was said by the High Court in the decision of Stanford v Stanford delivered in 2012.[171] In that case, the majority stated that:

[35] It will be recalled that s 79(2) provides that '[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order'. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

[36] The expression 'just and equitable' is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[172]

1. Accordingly, considerations of what is just and equitable flavour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances. However, care must be taken to avoid conflating the stipulation contained in s 79(2) with the discretionary exercise contained in s 79(4).
2. In Bevan & Bevan the Full Court summarised three fundamental propositions relating to the interaction between s 79(2) and s 79(4),[173] which can be summarised as follows:

(a) Determination of what is just and equitable begins with an identification of existing property interests;

(b) The discretion provided by s 79 must not proceed on any assumption that any settlement of property should be different from those existing property interests, as determined by principles of common law and equity;

(c) However, a determination that a person has an entitlement to a division of property by reference only to s 79(4) would be wrong as it would ignore the express statutory requirement of s 79(2) or conflate the two considerations.

1. As discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under s 79(4) and the parties' financial relationship history with one another.
2. The four-step approach remains a valid approach to matrimonial property cases. In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:

[65] Although the High Court did not disapprove the four step process, we accept it was not approved either...However, the High Court's decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.

[71] Stanford will also serve as a reminder that the four step process 'merely illuminates the path to the ultimate result'.[174]

1. In the first step, I must ascertain what are the parties' assets and liabilities available to be divided between them. The normal rule is that those assets are to be determined as at the date of trial.[175]
2. In the second step, I must ascertain the contributions, which each party has made towards the pool of assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of that relationship. The second kind is contributions to the welfare of the family, in the words of s 79(4)(c):

the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.[176]

1. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
2. In its totality, s 79(4) of the Act requires the court to examine the entirety of contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of any asset which may be individually identified.
3. The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. Contributions, within the framework of a marriage, which are different in quality and nature - that of a homemaker and parent, which is not readily quantifiable in dollar terms, and that of a wage earner; - must be compared. It has been referred to as a holistic exercise.[177]
4. As a consequence, contributions are not automatically required to be tied to the acquisition of any particular item and may be taken into account in a total sense. The exercise is not a purely arithmetical or accounting one.

1. The Joint Balance Sheet tendered by the parties' counsel on the final day of trial[178] identifies the asset pool for division and is replicated as follows:

W Bank account #26 held on behalf of eldest child (as at 10/01/2025)

W Bank account #62 held on behalf of youngest child (as at 10/01/2025)

Shareholdings in Z Ltd (Share price as at 15/01/2025 - $... per share)

Legal fees paid by the Wife from her medical negligence claim and interim distribution of her late mother's estate

ANZ Home Loan #11 (Suburb K mortgage as at 10/01/2025)

Funds owed to Mr and Ms CC on account of legal fees paid in these proceedings as at 14/01/2025

Outstanding superannuation guarantees payable by Leena Pty Ltd

Anticipated Capital Gains Tax arising from transfer of Motor Vehicle 1 from Leena Pty Ltd to the Wife

Anticipated taxation liability arising from repayment of the 2021 Division 7A Loan and 2022 Division 7A Loan by way of declaring dividends

1. In respect of the above list, the parties have agreed that each of them will retain certain items. I summarise these agreements below.

1. The wife sought orders to the effect that she be declared to be the sole owner in equity and at law to the following:

(a) Any funds standing to her credit in any Bank, Credit Union or Building Society account;

(b) Motor Vehicle 1;

(c) Motor Vehicle 2;

(d) P Investment;

(e) Any superannuation fund in which she has an entitlement;

(f) All and any leave or long service, or any other employment benefits or entitlements.

(g) Any and all life insurance policies in her name.[179]

1. The husband consents to orders in these terms.[180]
2. The wife also sought an order that she retain the properties at Suburb K and Town O.[181] The husband consents to such an order subject to default orders, which may apply if the wife fails or refuses to refinance the mortgages secured over those properties into her sole name.[182]

1. The husband sought orders to the effect that he be declared to be the sole owner in equity and at law to the following:

(a) Motor Vehicle 4;

(b) Motor Vehicle 6;

(c) Motor Vehicle 5;

(d) His tools;

(e) All cash at banks and monies invested in his sole name;

(f) All furniture and personal effects in his possession; and

(g) Any superannuation entitlements received by him and invested by or on his behalf.[183]

1. The wife by her (Further Amended) Initiating Application filed 6 December 2024 made a concession to the effect that it is appropriate for the husband to retain those items referred to above.

DISPUTES WITH RESPECT TO THE COMPOSITION OF THE BALANCE SHEET

1. Although the parties tendered a Joint Balance Sheet[184], the parties remained in dispute with respect to the quantum of several items and/or whether certain liabilities ought to be treated as the joint liability of the parties for the purposes of my determination. These disputes are summarised below.

1. The wife quantified the value of household contents at $8,000 whereas the husband quantified the value of the same at $15,000. Save and except for the business, no formal valuations had been obtained by either party. It is not open to me to simply ascribe a value to the household contents absent any evidence to enable me to do so.[185] For the purposes of my determination, I will remove any reference to household contents from the Balance Sheet.
2. By his counsel's Outline of Case Document, the husband sought an order that he be at liberty to collect the following items from the Suburb K property:

(a) A sports jersey;

(b) All racking in the garage;

(c) Waste oil tank;

(d) A novelty item;

(e) A fishing rod;

(f) A box of magazines located in the garage; and

(g) A set of golf clubs.

1. Otherwise, the husband simply sought an order that each party retain all items of property currently in his/her possession or custody. The wife agreed to an order in similar terms.[186]
2. In addition to the orders sought by the parties with respect to the retention of items, I will simply make an order that the husband be at liberty to collect the items described above from the Suburb K property to the extent that the chattels remain at that location.

1. By the conclusion of the trial, the wife did not include an amount held by the parties for the benefit of the elder child in P Investment in a sum rounded up to $6,673.
2. This is despite the terms of Exhibit H47 being an account summary for the 2024 financial year.
3. Although the parties describe the account held for the elder child as being an asset of the wife, the statement for the 2024 financial year identifies the membership in P Investment as being in joint names of the parties. Accordingly, I will make an order that the husband do all things and sign all documents as may be necessary to transfer ownership of the P Investment account to the wife.

1. The wife includes in the Joint Balance Sheet the husband's Motor Vehicle 3 at a value of $30,000. The wife did not produce any evidence to support a value of $30,000. Further, it is not appropriate to include the vehicle as a separate line item in the Joint Balance Sheet in circumstances where the vehicle and its associated liability is the subject of a report prepared by the single expert forensic accountant and it has been included as an asset of the business when considering the business' value.[187] To include it as a separate asset on the Joint Balance Sheet would be double dipping.

1. The wife says a debt in a sum of $6,920 is owed to Centrelink for childcare subsidies. She also says that in respect of this amount, she accrued a debt of $4,724.50 in respect of family tax benefits on account of the husband's change in income.[188] The wife provided no documentary evidence with respect to the quantum of the Centrelink debt at the time of separation or any evidence to support the amounts, which she says she repaid in the post-separation period. Nevertheless, the parties agreed that the debt in a sum of $6,845 exists, and I will take the debt into account in my determination.

1. The husband asserts that during the relationship the parties used income generated by the business for their private purposes. The husband says that in turn, this generated loans for the purposes of Division 7A of the Income Tax Assessment Act 1936 (Cth). The husband says that he was unaware of the existence of the same until he was collating disclosure for the purposes of these proceedings.[189] The husband says that this situation existed because the wife "generally handled... [the parties'] taxation affairs". He also says that he would "sign the documents without reading or understanding them as...[the wife] had requested I sign them".[190] The husband's evidence is consistent with the evidence of the wife who says that once the business was established she "took on the role of bookkeeper and otherwise attended to other administrative and Human Resources tasks including sending invoices, emails, marketing and managing the business' social media accounts".[191] The wife's oral evidence as to the operation of the business was that:

(a) The wife and the husband together managed the bank accounts of the business;

(b) The wife was able to withdraw monies from the business by way of transfer to her personal account;

(c) The parties' accountant who the wife in her oral evidence described as "dodgy" would prepare financial statements for the business. There is no evidence that the wife ever expressed concern about the accuracy of the financial statements, or the work performed by the parties' accountant until she became embroiled in this litigation.

1. The parties engaged a single expert forensic accountant to value the business, and the expert prepared a report dated 15 May 2024. It was the opinion of the single expert that the value of the parties' interest in the company at 30 June 2023 was as follows:

Less loan payable by the husband to the business (2021 financial year)

Less loan payable by the husband to the business (2022 financial year)

1. The loan amounts were identified by reference to the financial statements of the business as at 30 June 2023.[192]
2. In her oral evidence, the wife:

(a) accepted that the business' accountant would prepare financial statements during the course of the parties' relationship;

(b) accepted that the husband owed monies to the business as at June 2022;

(c) disputed the quantum of the Division 7A loans;

(d) suggested that her solicitors had questioned how the 2021 and 2022 loan amounts were quantified but never produced any documentation to support a conclusion that those enquiries had in fact been made. The topic was not the subject of re-examination nor was it addressed in closing submissions made by the wife's counsel.

1. The gravamen of the wife's complaint seems to be that some transactions comprising the Division 7A loans have been identified by her as transactions relating to business expenses, transactions for the husband's personal benefit only and funds, which were described as "miscellaneous".[193] The difficulty, which I have with the wife's argument as presented by her is:

(a) Firstly, some of the amounts the subject of the Division 7A loans on the wife's own evidence relate to joint expenses. I am not in a position by reason of the manner in which the evidence was presented by either party to make an assessment of the quantum of joint expenditure;

(b) Some transactions on each party's evidence relate to purchases for the husband's personal benefit. Other transactions seem to relate to purchases, which on their face could be for the benefit of the household. Again, I am not in a position by reason of the manner in which the evidence was presented by either party to identify the transactions with any precision;

(c) The husband identifies that several transactions relate to the transfer of monies from the business to his personal accounts, a joint account in the name of the parties, and the wife's bank account;[194]

(d) Each party identify transactions in respect of purchases made at hospitality venues. There was no exploration by either counsel about whether the purchases were made by the husband, the wife or whether the purchases were made for the parties' mutual benefit; and

(e) Most importantly, the wife produced no evidence whatsoever, which would enable me to consider the accuracy of the loan amounts as referred to in financial statements prepared by the accountant for the business.[195] The loan amounts were the subject of lengthy schedules prepared by the accountant.[196]

1. Although the husband was the sole director and shareholder of the business,[197] the matters referred to above cause me to conclude that there is no reason whatsoever why I cannot find that in respect of the 2021 and 2022 financial years, the financial statements for the business do not accurately record the quantum of Division 7A loans. Although the wife's oral evidence was that the accountant for the business is "dodgy", she did not particularise how this might be so nor did the wife obtain any evidence, which might permit me to draw such a conclusion.
2. It is agreed between the parties that in the post-separation period, the husband reduced the quantum of the Division 7A loans for the 2021 and 2022 financial years from $157,851 (supra) to $134,767.[198] The husband says that he did so by instructing his accountant to "declare a portion of the loan as dividends in order to reduce the loan".[199] As a consequence, the husband has now generated a tax liability in his name, which I discuss below.
3. It is otherwise agreed between the parties that in the 2024 financial year, the husband generated a Division 7A loan in a sum of $13,902. I make the same comment in respect of that loan and its calculation as I do above.

Anticipated taxation liability arising from repayment of the 2021 Division 7A Loan and 2022 Division 7A Loan

1. The husband has included an amount in respect of an anticipated taxation liability in a sum of $89,995 arising from repayment of the 2021 Division 7A Loan and 2022 Division 7A Loan by way of declaring dividends.
2. The husband's accountant has calculated that in each of the financial years ending 30 June 2025 to 30 June 2029 (inclusive), the husband will need to pay taxation liabilities associated with the loans in the order of $19,260 per annum save for the 2029 year where the liability reduces to $12,951. The letter from the husband's accountant dated 15 January 2025 was tendered with the consent of the wife.[200] Accordingly, I will bring a sum of $89,995 to account as a liability of the husband.

Anticipated capital gains tax arising from the transfer of the Motor Vehicle 1 to the wife from the business

1. At the time of separation, the wife retained Motor Vehicle 1. The vehicle was owned by the business.[201] The husband did not transfer the vehicle to the wife until May 2023.[202] The vehicle had been fully depreciated at the time that the single expert prepared his report.[203] In any event, the husband says that he was advised by his accountant that the business is likely to incur a capital gains tax liability as a consequence of the transfer.
2. I invited counsel for the parties to provide me with further submissions as to the calculation of any capital gains tax liability. The wife consented to the tender of a letter from the husband's accountant, which identified that the business will incur a capital gains tax of about $4,090.[204]
3. The liability was not included in the report of the single expert forensic accountant. Accordingly, I will include the debt as one payable by the husband.

1. The wife says that in the post-separation period, she relied on funds from her mother "to assist with paying the mortgages and for the children's expenses". Sadly, the wife's mother passed away in 2023[205] and the wife says that she now owes the estate of her late mother a sum of $146,015 on account of these funds. These monies are in addition to the monies received by the wife from her mother's estate and the monies received by way of compensation. It follows that since separation in September 2022, the wife has had the benefit of the following monies:

1. This is in addition to a net weekly income (including the wife's salary received from a government department, rental income and government benefits) of about $2,574 per week or say $267,696 over the period September 2022 to September 2024.[206]
2. The wife did not produce any documentation in relation to the loan from her mother nor did she provide any evidence apart from her mere assertion as to the manner in which the loaned monies were applied. Similarly, the wife has not produced any evidence to support a conclusion that she is obliged to repay the monies of $146,015 to the estate. It is true that the Probate of Will refers to the monies allegedly owing by the wife to the Estate.[207] However, the Full Court of the Family Court in Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614 indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities include but are not limited to a liability which is vague or uncertain or if such liability is unlikely to be enforced or if it was unreasonably incurred.[208]
3. The wife has not produced any evidence with respect to the existence of any loan nor has the wife produced any evidence that the alleged loan will be enforced by the estate if in fact such a loan exists.[209] This is despite having been "requested [by the husband] on numerous occasions" to provide disclosure with respect to this topic.
4. I recognise, however, "the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity shaped by each".[210]
5. Given the significant sums enjoyed by the wife in the period subsequent to separation and the absence of any evidence with respect to the existence of any loan, I am not inclined to conclude that the dictates of justice and equity require the alleged loan to be included in the list of assets and liabilities falling for determination by me.

1. The wife by her written evidence says that she still owes "approximately $75,000 to the builders for ongoing constructions at the [Suburb K] property".[211] By way of the Joint Balance Sheet tendered by her counsel on the final day of trial, the wife asserts that she will be obliged to pay her builders an additional sum of $88,000 in order to complete renovation works at the property.[212]
2. As discussed above, the parties agreed to adopt the lower valuation in respect of the former matrimonial home, which figure assumed that renovation works had not been performed. This being so, there is no basis for the foreshadowed additional costs, however they might be quantified, to be included in the list of assets and liabilities, which fall for my consideration. The conclusion would, of course, have been different if the parties had agreed the higher valuation was applicable in respect of the former matrimonial home.

Funds owed by the husband to his parents and funds owed by the wife to a litigation financier

1. The husband says that he has "borrowed money from my parents to fund these legal proceedings and as at 20 December 2024 I have borrowed $286,190.99 for legal fees from them".[213]
2. On 12 July 2024, the husband entered into a Loan agreement, which identifies that his parents agreed at the husband's request to lend him a sum of $200,000. With respect to the alleged loan:

(a) Annexure A to the agreement identifies that monies in a sum of $137,188 were advanced during the period 31 March 2023 to 1 July 2024 and that the monies were paid in their entirety to the husband's solicitor;[214]

(b) The Loan Agreement was executed three months after the first sum of $10,000 was advanced by the parents to the husband;[215]

(c) It is not clear when additional monies in a sum of $62,812 were advanced (taking the total to $200,000);

(d) A sum of $200,000 was secured by way of a Deed of Guarantee and Indemnity;[216]

(e) The repayment date is identified as 11 July 2025. The husband's counsel suggested in her oral closing submissions that there was "probably a bit of magic to that date because that's the date after these proceedings conclude and after the husband would receive a sum of money from which he's able to repay all, if not part, of the loan the money is advanced".

1. At some stage after 1 July 2024 but on dates not particularised by the husband, he borrowed additional monies of $169,003 increasing the quantum of monies allegedly owed by the husband to his parents to a sum of $306,191. These additional monies are not the subject of any loan agreement. Given that the terms of any additional loan between the husband and his parents with respect to the additional monies are uncertain, I decline to characterise those monies as being the subject of a loan. Simply, the terms are too vague.[217]
2. The wife owes a litigation funder a sum of $64,568.95.[218] She has otherwise expended a sum of $151,908.[219] That is slightly less than the sum identified by the husband noting he estimates that during the period 17 May 2022 to 16 November 2024, the wife expended a sum of $155,681. As discussed above, the wife also says that she owes the estate of her late mother a sum of $146,015. On the wife's evidence, therefore, she owes a litigation funder and her late mother's estate a sum of $210,673.
3. As discussed above, the husband has calculated that in respect of monies received as a consequence of her medical negligence claim, the wife has expended a sum quantified at $94,880 on legal fees.[220] The wife's oral evidence was to the effect that she did spend some of the monies on legal fees although she had not made any calculation as to the quantum of the same. At paragraph 378(d) of his affidavit filed on 20 December 2024, the husband set out with precision the monies spent by the wife on litigation funding and legal fees and disbursements for these proceedings.
4. In NHC & RCH the Full Court said as follows with respect to the payment of legal fees:

In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.[221]

1. In Trevi & Trevi, Murphy J said that the delineations referred to in NHC & RCH such as "the funds used existed at separation...such that both parties can be seen as having an interest in them" or "funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours" cannot be seen as determinative in the exercise of discretion but, rather as informing it. His Honour also referred to the reason why paid legal fees "occupy a particular position in the consideration of addbacks" being the presence of section 117(1) of the Act which means that a failure to add back legal costs will amount to a pre-emptive decision about one party paying the other party's legal costs where it is appropriate in all the circumstances for such an addback to be made.[222]
2. Ordinarily, I would be inclined to add back the amount of $94,880 spent by the wife on legal fees. In my view, however, it is not necessary to add back the amount to achieve justice and equity in relation to the property division under consideration. Equally, I have concluded that it is not necessary to include the alleged loan from the husband's parents in the balance sheet. This is because:

(a) Each party has liabilities in respect of legal fees;

(b) Although the husband's outstanding liability is greater than the wife's liability, I have determined for the reasons discussed below that I will not provide any party with an adjustment in his/her favour on account of contributions during or subsequent to the relationship.

Outstanding superannuation guarantees payable by the business

1. The business had a liability for superannuation of $43,424 as at 30 June 2023. In respect of that sum:

(a) $31,344 was attributable to the husband on a before tax basis;[223]

(b) A sum of $12,000 was paid to an apprentice subsequent to 30 June 2023.

1. I accept the advice of the single expert that the liability of the company with respect to superannuation must be paid and that otherwise, the sum of $31,344 ought to be taken into account when considering the value of the husband's superannuation interests.[224]
2. It appears, however, that the liability of the business to the husband has already been taken into account when determining the value of the company[225]. This being so, I will not include the sum of $31,344 as a liability of the parties as sought by counsel because to do so would be erroneous when the single expert has factored it into the value of the corporate entity. I do agree, however, that it is appropriate for me to refer to the unpaid superannuation as a financial resource of the husband.

1. The various and different contributions of the parties must be assessed and weighed against the background of the relationship of ten years in duration, which produced two children who are still under the age of majority.
2. The wife moved into the husband's Suburb V property in 2012. The husband contends that on doing so, the wife rented out the Suburb S property and used the rental income to service her debts.[226] He says that he otherwise paid the mortgage on the Suburb V property and that the parties shared utilities and other household expenses.[227] The wife agrees that the rental income from the Suburb S property was applied towards the mortgage secured over the same and says that any residual monies from the rental income was applied to household expenses.[228]
3. Although each party failed to obtain any historical valuation of their interests at the time of cohabitation, I am able to find that save for her interest in the Suburb S property, the wife's financial position was parlous. I can make that finding by reference to a letter from DD Company Debt Relief to the wife dated 20 October 2014 wherein DD Company Debt Relief says as follows:

We refer to previous correspondence and confirm receipt of $31,616.

We advise that the final dividends have been distributed to the creditors listed in your Statement of Affairs in accordance with your Part IX Debt Agreement Proposal.

We have also written to AFSA [Australian Financial Security Authority] advising that you have discharged your obligations pursuant to the Part IX Debt Agreement and you will shortly be receiving a written confirmation from AFSA to that effect.[229]

1. It follows that at the time of cohabitation, the wife was the subject of a debt agreement under Part IX of the Bankruptcy Act 1966 (Cth). To the extent that I need to do so, and because the wife was able to rent the Suburb S property to third parties, I find that there is merit to the husband's assertion that the parties' financial arrangements at the time of cohabitation assisted the wife to satisfy her debts.
2. The husband says that he undertook renovations to the Suburb V property prior to its sale in October 2016.[230] He also says that he undertook works to the Suburb S property, which the wife sold in August 2015.[231] As might be expected, the wife also says that she paid for improvements to the Suburb V property prior to its sale.[232] Absent any information as to whether or not the works performed by either party improved the value of either property, I find that each party was working to advance their joint financial position to the best of his/her ability.
3. The elder child was born in 2015, and the Suburb S property was sold in August 2015. It is an agreed fact that the wife received $293,743 from the sale of the Suburb S property.[233] The wife's oral evidence is that she was not required to pay capital gains tax although an email sent by the wife to a broker in December 2015 contradicts this assertion.[234] For the purposes of my assessment of contributions, I will accept the wife's oral evidence that she obtained an exemption from the payment of capital gains tax. I do so in circumstances where I do not consider that the payment of the tax (if such payment occurred) will alter my assessment of the parties' contributions during the relationship.
4. In 2016 and in the same month that the parties married, the husband commenced his business.[235] The business was operated through a proprietary limited company. The husband contends that the wife's involvement in the business was infrequent whereas the wife says that the wife "took on the role of bookkeeper" and attended to administrative tasks.[236] Again, I do not consider that any distinction with respect to the allocation of tasks will assist me to determine an appropriate adjustment of the parties' financial interests. Instead, I find that each party was working to the best of his/her ability to advance their joint financial interests.
5. The parties purchased a house and land package at L Street, Suburb K in March 2016 for around $509,000. The husband and wife contributed equally to the deposit of $49,000 and obtained a mortgage for the balance.[237] The husband sold the Suburb V property in 2016 and received proceeds of sale of $337,428.93.[238] The husband says that he applied these monies to works at the Suburb K property.[239] The wife says that she also contributed financially to improvements to the property.[240] Again, I find that each party made financial contributions to the best of his/her ability through employment and the use of monies received by them on the sale of their respective properties.
6. On 18 February 2019, the parties purchased an investment property at M Street, Town O for a sum $465,000. The parties refinanced the mortgage over the Suburb K property to finance the purchase. The property was rented to third parties, and the rental income was applied to the mortgage secured over the Suburb K property.[241]
7. In 2022, the wife's mother gave her a sum of $50,000. The wife says that these monies were applied towards the children and the household.[242] For his part, and in 2022, the husband received a sum of $10,000 by way of an inheritance, which he says was applied towards joint expenses and the payment of a loan, which the parties obtained to construct a pool at the Suburb K property.[243]
8. The husband left the former matrimonial home in October 2022 and lived with his brother for a short time prior to renting a property.
9. The husband has continued to work in the parties' business in the period subsequent to separation and by doing so, he has facilitated a partial payment of Division 7A loans. I discuss this in further detail below. For her part, the wife had the primary care of the children and paid the mortgage secured over the Suburb K property.[244] In part, and as discussed below, the wife met the payment of the mortgage from an inheritance received by her.
10. The wife asserts by her affidavit filed on 6 December 2024 that in the post-separation period, the husband withdrew monies from joint accounts and applied them for his own purposes. This was not a feature of cross-examination of the husband by the wife's counsel nor was it a matter referred to by him during closing submissions. For the reasons discussed below, I do not consider this topic to be a significant factor in determining the appropriate division of assets.
11. In 2024, the wife received a sum of $200,846 in compensation as a result of a medical negligence claim. The conduct giving rise to that claim occurred in 2018 when the wife underwent two procedures.[245] The wife provided no documentation to enable me to determine whether the compensation was in respect of non-economic loss or economic loss or some other head of damage. The monies have now been dissipated in their entirety. In part, the wife spent the monies on legal fees for these proceedings, which the husband quantifies at $94,880.[246] The husband prepared a schedule pursuant to section 50 of the Evidence Act 1995 (Cth) to identify the fees expended by the wife.[247] Her oral evidence was to the effect that she did spend some of the monies on legal fees although she had not made any calculation as to the quantum of the same. The Costs' Notice filed by the wife's solicitor on 13 February 2025 is deficient in that it does not identify with precision the source of funds used by the wife to date to satisfy her legal expenses.
12. On 18 September 2024, the wife received an interim distribution of $352,280 from the estate of her late mother.[248] These monies have been expended by the wife. She says that the monies have been expended on:

(a) Repairs to the Suburb K property and the purchase of furniture;

(b) Accommodation whilst works were undertaken at the Suburb K property;

(c) The mortgage secured over the Suburb K property;

(d) Further in vitro fertilisation treatments;

(e) The purchase of Christmas presents for the children;

(f) Payments for the funeral of a friend's relative;

(g) A proposed holiday to the United States of America;

(h) In partial satisfaction of legal fees incurred for the purposes of these proceedings.[249]

1. The wife asserts that to the conclusion of the parties' relationship and taking into account contributions made by her subsequent to separation, the assets of the parties ought to be divided on a 70:30 basis in her favour. For his part, the husband says that the parties' contributions ought to be assessed on an equal basis.
2. As discussed above, the husband was likely ahead of the wife in terms of the quantum of his initial contribution noting that at the time he sold the Suburb V property in 2016, he received proceeds of sale of $337,428 whereas for her part, and in 2015, the wife received a sum of $293,743 from the sale of the Suburb S property. The other assets owned by the parties such as motor vehicles were not the subject of valuation.
3. The monies realised on the sale of the Suburb V and Suburb S properties were applied towards works at the Suburb K property as well as the parties' general expenditure. On balance, and absent any additional assistance from the parties with respect to the precise value of their initial contributions, I am not inclined to make an adjustment in favour of either party on account of their initial contributions. Similarly, I am not inclined to make an adjustment in the wife's favour for the fact that she received $50,000 by way of an inheritance during the relationship whereas the husband only received $10,000 by way of an inheritance (supra). To the extent of any disparity, it is my view that the greater sum received by the wife is matched by the greater initial contributions of the husband.
4. With respect to the parties' financial contributions during the relationship, a holistic approach to the parties' respective financial contributions is to be taken.[250] The wife by her trial affidavit included several paragraphs with respect to financial contributions made by her during the relationship but I reject that when assessing contributions made over the course of a ten year relationship I am obliged to undertake a meticulous mathematical exercise.
5. The husband readily conceded during cross-examination that he was not a "hands on" father during the relationship in circumstances where he was often working seven days per week. This being so, I find that the wife was the primary homemaker and carer of the children.
6. In every sense, the parties in these proceedings created a personal and commercial union. It was a partnership. As highlighted by Justice Strum in Wallace & Wallace [2022] FedCFamC1F 536, there has been some judicial debate, over the years, as to the concept and role of "partnership" within the assessment of contributions for the purposes of s 79(4)(a) - (c) of the Act.[251]
7. In Waters & Jurek [1995] FamCA 101; (1995) FLC 92-635 (Full Court) at 82,379, Fogarty J said:

In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership.

...

On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end.

1. Similarly, in Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 (Full Court) at 84,300, Fogarty and Lindenmayer JJ said:

The reality is that the parties lived their married life together, they brought to that marriage qualities which each saw as attractive. Within the s 79 context each party contributed as best they could the qualities which each brought to the marriage. In the husband's case it included the quality of being very wealthy. In the wife's case the qualities were less tangible.

1. For the reasons set out above, I find that each party contributed as best they could to the marriage and to the acquisition of their joint wealth. I decline to make any adjustment in favour of either party on account of contributions made by either of them during the relationship.
2. The wife's contributions in the post-separation period warrant careful consideration due to the wife's assertion that she has "solely serviced the loans, repairs, renovations and maintenance costs in respect of the [Suburb K] and [Town O] properties, all rates, property related bills and the children's health insurance and bills with the assistance of money lent...by the maternal grandmother".[252]
3. I have difficulty with the wife's assertion that an adjustment in her favour on account of post-separation contributions is warranted. Particularly, I note the following:

(a) Although the wife's evidence is that for a short period, the husband diverted the rental income received from the Town O property, her evidence is to the effect that this was quickly resolved;[253]

(b) The wife says that in about November 2022, the parties agreed to meet household bills equally;[254]

(c) In July 2024, the Suburb K property was valued at $1.45 million.[255] The property was valued again on 9 December 2024. For the purposes of the revised report, the single expert valuer was asked to consider the value of the property if renovation works had not been performed and conversely, the value of the property if renovation works had been performed. On the final day of trial, counsel for the wife and the husband advised me that the parties had adopted the figure, which would apply if the renovation works had not been performed, namely, a figure of $1,480,000. Assuming the renovation works are completed, the single expert valuer placed a value on the property of $1,510,000.[256] Given that the wife on her own evidence made improvements to the property after she received a part-distribution from her mother's estate on 18 September 2024[257], it follows that the wife ought not receive any adjustment in her favour on account of utilising monies from her mother's estate because the wife has adopted the lower figure identified by the single expert valuer;

(d) Insofar as the wife used the monies received by her as a consequence of the medical negligence claim for daily living expenses and household expenses,[258] the wife was employed on a full-time basis by a government department. In addition to monies received from that employment, which the wife says is $157,716 gross per annum,[259] the wife has dissipated in their entirety, the monies received by her from her mother's estate and the monies received by way of compensation. On my calculation, this means that in the period 8 April 2024 to date, the wife has expended a sum of $642,800 in addition to monies received from her employment.

1. For his part, the husband has continued to operate the business and as discussed, has satisfied some of the Division 7A loans.
2. As the Full Court in Roverati and Roverati [2021] FamCAFC 89 at [33] restated (citing Dickons & Dickons (2012) 50 FamLR 244 at [23] - [26]:

[33] ...the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.

1. Bearing in mind all these circumstances, I assess the parties' overall contributions as being equal. The outcome, of course, would have been different had the wife not dissipated the entirety of monies received by her in various forms in the period subsequent to separation.

SECTION 75(2) - THE PROSPECTIVE NEEDS OF THE PARTIES

1. The wife sought an adjustment of twenty per cent in her favour on account of contributions such that the combined non-superannuation and superannuation asset pool be divided on a 70:30 basis in her favour. Assuming that the wife was the beneficiary of such an order, the wife submitted by her counsel's Case Outline that "the future needs factors are finely balance and...no adjustment is warranted by reason of them".[260]
2. For his part, the husband asserted that the wife has a significant further financial resource in the estate of her mother and that this being so, there ought to be an adjustment in his favour in the order of ten percent.[261] The wife says that her interest in her mother's estate "cannot presently be quantified".[262] For the reasons discussed below, I reject that assertion.
3. The husband alleges non-disclosure in relation to the estate of the wife's mother. The wife asserts that she has provided the best disclosure that she is able to, and that in any event, the husband has made no contribution to the wife's inheritance and the undistributed portion of it should be characterised as a financial resource of the wife to which the court would have regard under s 75(2)(b) of the Act.[263]
4. The evidence enables me to find that:

(a) Pursuant to the Will of the wife's late mother[264], the wife and her brother are jointly, executors and trustees of the Will; and

(b) The Estate of the wife's mother is to be divided in three equal parts between the wife, her brother and the wife's sister.

1. The Probate of Will granted in early 2024, identifies that the value of the Estate is $3,375,727.58.[265] Assuming that the wife will receive a third of the said sum, the wife stands to receive a sum of $1,125,242.53. In respect of this sum:

(a) The wife says that she owes the Estate a sum of $146,015. As discussed above, I consider that the terms of the alleged loan were vague or uncertain; and

(b) The wife says that she has received a part distribution from her mother's estate in a sum of $352,280.

1. If I am wrong with respect to the matters referred to in sub-paragraph (a) above, then the sum, which the wife will receive from her mother's estate is $626,947. If I am correct, the sum, which the wife will receive from her mother's estate is $772,962. Either way, it is a significant sum.
2. There is simply no evidence whatsoever to support a conclusion that the Will is the subject of a challenge by family members.[266] If it is the subject of a challenge, the wife could have led evidence in respect of the same. As an executor, the wife was in a position to produce information with respect to any challenge. She did not do so. As a consequence, I find that at the very least, the wife will receive an additional $626,947 from her mother's estate. For the reasons discussed above, that sum could be $772,962.
3. In relation to the demands upon her finances, the wife:

(a) Deposes to the quantum of the children's NDIS plans as being in the order of $72,264 for the period August 2023 to August 2025 albeit the plans are due to expire in August 2025;[267]

(b) The children's NDIS plans do not cover their regular medication costs of about $50 per month.[268] The mother produced no evidence in support of that assertion;

(c) Says that she has ongoing medical needs as a consequence of surgeries in 2015 and 2018 and the consequent medical negligence claim. The wife did not call any expert to give evidence as to the surgeries required or the expense associated with the surgeries;[269]

(d) The mother says that due to a medical condition, she has been "advised by several doctors of my reduced future working capacity".[270] The only document produced in support of this assertion is correspondence authored by the mother's medical professional dated 14 September 2015 and 8 November 2018.[271] That correspondence confirms that the mother may require surgery to correct a medical condition. No additional information with respect to the impact of the wife's back condition on her capacity for gainful employment was produced;

(e) The wife anticipates taking maternity leave for "several months" following the birth of her third child.[272]

1. For his part, the husband says that he wishes for his business to be sold as he is not confident that he will receive the sum placed on the business by the single expert valuer.[273] Whilst that is the husband's contention, I will bring the business to account as an asset of the husband at the value identified by the single expert. I will also bring to account the liabilities of the business. The husband as the sole director and shareholder can then decide the manner in which he wishes to sell the business and when he wishes to do so. There was no challenge to the single expert's valuation and as such, there is no impediment to proceeding in the manner described.
2. I also note that as at 30 June 2024, the business made a gross profit from trading in a sum of $342,776 and a profit after income tax of $97,939.[274] Accordingly, the husband as the sole director and shareholder is in control of a business, which generates a profit after income tax of about $100,000. This is comparable to the monies, which the wife receives in the course of her employment by a government department and income received from the rental of the Town O property. The wife wishes to retain that property.
3. By reason of the parenting orders to be made by me, the wife will retain financial responsibility for the parties' children for the foreseeable future. This is a major factor, which favours her. Also, and keeping in mind that the wife is soon to give birth to her third child, I find her employment opportunities to be more circumscribed than those of the husband.
4. For his part, the husband will be left with a profitable business. He will also be liable for the payment of child support. In Clauson & Clauson[275] the Full Court said as follows:

The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.

1. In this case, the Child Support Agency and the husband had been in dispute with respect to the child support payable by him given that the Director's Loans impact his child support assessments. Nonetheless, the tenor of the husband's affidavit is that prior to a change of assessment in August 2024, he was consistent with respect to the payment of child support and was not in any arrears.[276]
2. If the husband remains self-employed in some capacity, it is likely that the parties will continue to be in disputation about child support. However, I consider it more likely than not that the wife will receive a regular and adequate supply of child support from the husband until the children attain the age of eighteen years.
3. As discussed above, the wife's interest in her mother's Estate will result in the wife receiving additional assets in the order of $626,947 to $772,962. The fact that the wife will do so and yet denied that she would receive the sum is a matter that weighs on me. Similarly, the fact that the wife will bear financial responsibility for the parties' children for the foreseeable future is a matter, which weighs on me.
4. I propose to allow the husband seven percent as a consequence of the financial resource, which will fall to the wife pursuant to the terms of her mother's will.

1. In Steinbrenner & Steinbrenner,[277] Coleman J observed as follows at [234]:

[234] Given that the evaluation of contribution-based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.

1. I must now make a leap and turn to the topic of what each party will receive, particularly how and in what form. This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned.
2. I have come to a conclusion that it is just and equitable to divide the parties' pool of assets 57:43 per cent in the husband's favour. I note that the wife will be the primary carer of the parties' two children, however, I believe that this factor is outweighed by the significant financial resource available to the wife in the form of monies which will be distributed to her from her mother's estate.

1. Having regard to the parties' existing property interests and the interests to be retained by the wife by agreement, the wife will retain non-superannuation assets with a net value of $1,093,280 calculated as follows:

W Bank Incentive Saver account (ending 26) held on behalf of the elder child

Less ANZ Home Loan (ending 11) secured over the Suburb K property

Less ANZ Loan (ending 38) secured over the Town O property

(a) The wife's interest in Super Fund 1, which has a value of $229,726;

(b) The wife's interest in her mother's Estate, which as discussed will result in the wife receiving additional assets in the order of $626,947 to $772,962.

1. Excluding the entirety of the wife's interest in her mother's Estate, the wife will have the benefit of non-superannuation and superannuation assets in the order of $1,323,006.

1. Having regard to the parties' existing property interests and the interests to be retained by the husband by agreement, the husband will retain non-superannuation assets with a value of $114,916 calculated as follows:

Less anticipated taxation liability arising from repayment of the 2021 Division 7A Loan and 2022 Division 7A Loan by way of declaring dividends

1. In addition, the husband will retain his interest in Super Fund 2, which has a value of $105,961.
2. The parties have invited me to adopt a global approach to the assessment of the Joint Balance Sheet. Accordingly, and by reference to the calculations referred to above and without any adjustment, the parties would have the benefit of the following assets:

Non-Superannuation and Superannuation Assets in the Wife's name

Non-Superannuation and Superannuation Assets in the Husband's name

(a) The wife's retains her remaining interest in her mother's Estate, which will result in the wife receiving additional assets in the order of $626,947 to $772,962;

(b) The husband has superannuation owing to him by the business in a sum of $38,122.

1. In order to effect a 57:43 adjustment of the non-superannuation and superannuation assets in the husband's favour, it will be necessary for the wife to pay to the husband a sum of $659,136 calculated as follows:

57 percent x the net non-superannuation assets and superannuation assets

(being $1,543,883)

Less non-superannuation and superannuation assets in the husband's possession

1. In the event of default, I have calculated that it may be necessary for the wife to sell each of the properties, which she wishes to retain. I will draft orders accordingly.
2. The wife seeks an order that if either property does not sell at auction, then the property be relisted for sale with the parties able to negotiate with the highest bidder and accept an offer at no less than 98.5 percent of the reserve price. The husband seeks an order that the relevant property be relisted for public auction every six weeks on the basis that the sale or reserve price shall be reduced by five percent at each auction until the property is sold. The parties did not address me as to the reasons for the differences in their proposals.
3. I find that the parties will incur unreasonable expense if I make orders implementing the nominal reduction proposed by the wife. Accordingly, I will make orders in terms similar to those orders promoted by the husband.

1. The outcome means that overall and including the inheritance to be received by the wife from the estate of her mother, the wife will retain assets with a value of between $1,290,817 and $1,436,832.
2. The husband will retain assets of $880,013. I am satisfied that overall, this is a just and equitable outcome of these proceedings. The orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and forty-nine (349) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Costs Notice filed 13 February 2025.

[2] Outline of Case Document filed 17 January 2025, Part C.

[3] Husband's Outline of Case Document, page 7 of 27.

[4] Stanford v Stanford (2012) 247 CLR 108 at [42].

[5] Wife's affidavit filed 6 December 2024, paragraph 6; Husband's affidavit filed 20 December 2024, paragraph 4.

[6] Wife's affidavit filed 6 December 2024, paragraph 5.

[7] Husband's affidavit filed 20 December 2024, paragraph 32.

[8] Wife's affidavit filed 6 December 2024, paragraph 193.

[9] Husband's affidavit filed 20 December 2024, paragraph 13.

[10] Leena & Leena [2024] FedCFamC1F 135.

[11] Wife's affidavit filed 6 December 2024, paragraph 44(a).

[12] Wife's affidavit filed 6 December 2024, paragraph 44(a).

[13] Wife's affidavit filed 6 December 2024, paragraph 44(b).

[14] Wife's affidavit filed 6 December 2024, paragraph 44(b).

[15] Husband's affidavit filed 20 December 2024, paragraph 39.

[16] Husband's affidavit filed 20 December 2024, paragraphs 40 and 41.

[17] Husband's affidavit filed 20 December 2024, paragraph 43.

[18] Husband's affidavit filed 20 December 2024, paragraph 44.

[19] Husband's affidavit filed 20 December 2024, paragraph 7.

[20] Wife's affidavit filed 6 December 2024, paragraph 176.

[21] Wife's affidavit filed 6 December 2024, paragraph 177.

[22] Husband's affidavit filed 20 December 2024, paragraph 314.

[23] Wife's affidavit filed 6 December 2024, paragraph 180.

[24] Husband's affidavit filed 20 December 2024, paragraphs 329 and 330.

[25] Wife's affidavit filed 6 December 2024, paragraph 8.

[26] Wife's affidavit filed 6 December 2024, paragraph 9.

[27] Wife's affidavit filed 6 December 2024, paragraph 184.

[28] Wife's affidavit filed 6 December 2024, paragraph 191.

[29] Wife's affidavit filed 6 December 2024, paragraph 191.

[30] Wife's affidavit filed 6 December 2024, paragraph 195.

[31] Wife's affidavit filed 6 December 2024, paragraph 203.

[32] Wife's affidavit filed 6 December 2024, paragraph 204.

[33] Wife's affidavit filed 6 December 2024, paragraph 210.

[34] Wife's affidavit filed 6 December 2024, paragraph 211.

[35] Wife's affidavit filed 6 December 2024, paragraphs 215 and 216.

[36] Wife's affidavit filed 6 December 2024, paragraph 216.

[37] Wife's affidavit filed 6 December 2024, paragraph 216.

[38] Wife's affidavit filed 6 December 2024, paragraph 216.

[39] Wife's affidavit filed 6 December 2024, paragraph 216.

[40] Wife's affidavit filed 6 December 2024, paragraph 209.

[41] Husband's affidavit filed 20 December 2024, paragraph 377.

[42] Wife's affidavit filed 6 December 2024, paragraph 209.

[43] Husband's affidavit filed 20 December 2024, paragraph 378(d).

[44] Wife's affidavit filed 6 December 2024, paragraph 236.

[45] Wife's affidavit filed 6 December 2024, paragraph 236.

[46] W1 toW27 and documents referred to by the husband in MFI 3.

[47] Exhibits H1 to H49 and other documents referred to in MFI 3.

[50] Outline of Case Document filed 17 January 2025, Part C.

[51] Outline of Case Document filed 17 January 2025, Part C.

[53] Leena & Leena (No 2) [2025] FedCFamC1F 97.

[54] Outline of Case Document filed 17 January 2025, Part C.

[55] Husband's Outline of Case Document filed 17 January 2025, pages 2 and 3 of 27.

[56] Mother's affidavit filed 6 December 2024, paragraph 110.

[57] Father's affidavit filed 20 December 2024, paragraph 61.

[58] Father's affidavit filed 20 December 2024, paragraph 62.

[59] Family Report dated 11 June 2024, lines 1146 to 1147.

[61] Mother's affidavit filed 6 December 2024, paragraph 39.

[62] Father's affidavit filed 20 December 2024, paragraph 283.

[63] Family Report dated 11 June 2024, lines 113 to 136.

[64] Mother's affidavit filed 6 December 2024, paragraph 4.5

[65] Mother's affidavit filed 6 December 2024, paragraphs 52 and 53.

[66] Father's affidavit filed 20 December 2024, paragraph 73.

[67] Father's affidavit filed 20 December 2024, paragraph 133.

[68] Father's affidavit filed 20 December 2024, paragraph 85.

[70] Father's affidavit filed 20 December 2024, paragraph 83.

[71] Affidavit of the father's partner filed 20 December 2024, paragraph 23.

[73] Order 1 of the Orders made on 1 March 2024.

[74] Family Report dated 11 June 2024, lines 850 to 852.

[76] Family Report dated 11 June 2024, lines 1234 to 1237.

[78] Father's affidavit filed 20 December 2024, paragraphs 72 and 73.

[79] Family Report dated 11 June 2024, lines 874 to 875 and 1301.

[80] Family Report dated 11 June 2024, line 1301 to 1302.

[81] Family Report dated 11 June 2024, lines 1601 to 1605.

[82] Family Report dated 11 June 2024, lines 1608 to 1611.

[83] Family Report dated 11 June 2024, lines 1610 to 1611.

[84] Family Report dated 11 June 2024, lines 1620 to 1621.

[85] Mother's affidavit filed 6 December 2024, paragraph 133.

[86] Father's affidavit filed 20 December 2024, paragraph 74.

[87] Affidavit of the father's partner filed 20 December 2024, paragraph 35.

[88] Father's affidavit filed 20 December 2024, paragraph 74.

[89] Mother's affidavit filed 6 December 2024, paragraph 80; Father's affidavit filed 20 December 2024, paragraph 144.

[90] Father's affidavit filed 20 December 2024, paragraph 200.

[91] Father's affidavit filed 20 December 2024, paragraphs 197-199.

[92] Mother's affidavit filed 6 December 2024, paragraph 84.

[93] Father's affidavit filed 20 December 2024, paragraph 202.

[94] Father's affidavit filed 20 December 2024, paragraph 202.

[95] Father's affidavit filed 20 December 2024, paragraph 199.

[96] Mother's affidavit filed 6 December 2024, paragraph 156.

[98] Father's affidavit filed 20 December 2024, paragraph 300.

[101] Mother's affidavit filed 6 December 2024, paragraph 18.

[102] Mother's affidavit filed 6 December 2024, paragraph 20.

[103] Father's affidavit filed 20 December 2024, paragraph 252.

[104] Family Report dated 11 June 2024, lines 622 to 624.

[105] Father's affidavit filed 20 December 2024, paragraph 253.

[106] Family Report dated 11 June 2024, lines 625 to 630.

[107] Father's affidavit filed 20 December 2024, paragraph 254.

[108] Father's affidavit filed 20 December 2024, paragraph 254.

[109] Family Report dated 11 June 2024, lines 1557 to 1562.

[110] Family Report dated 11 June 2024, lines 1562 to 1563.

[111] Father's affidavit filed 20 December 2024, paragraph 391.

[112] Mother's affidavit filed 6 December 2024, paragraph 34.

[113] Father's affidavit filed 20 December 2024, paragraph 279.

[114] Mother's affidavit filed 6 December 2024, paragraph 34.

[115] Mother's affidavit filed 6 December 2024, paragraphs 54 to 56.

[116] Mother's affidavit filed 6 December 2024, paragraph 57.

[117] Father's affidavit filed 20 December 2024, paragraph 57.

[118] Father's affidavit filed 20 December 2024, paragraph 59.

[119] Mother's affidavit filed 6 December 2024, paragraph 58.

[120] Mother's affidavit filed 6 December 2024, paragraph 41.

[124] Mother's affidavit filed 6 December 2024, paragraph 68.

[127] Report of the single expert at lines 1073 to 1077.

[128] Father's affidavit filed 20 December 2023, paragraph 221.

[129] Father's affidavit filed 20 December 2023, paragraph 223.

[134] Family Report dated 11 June 2024, lines 1174 to 1175.

[138] Father's affidavit filed 20 December 2024, paragraph 158.

[140] Father's affidavit filed 20 December 2024, paragraph 139.

[141] Family Report dated 11 June 2024, lines 533 to 537.

[142] Family Report dated 11 June 2024, lines 1104 to 1107.

[143] Family Report dated 11 June 2024, lines 1346 to 1349.

[144] Family Report dated 11 June 2024, lines 1506 to 1508.

[145] Family Report dated 11 June 2024, lines 1533 to 1535.

[146] Family Report dated 11 June 2024, lines 1538 to 1539.

[147] Family Report dated 11 June 2024, lines 1036 to 1041.

[148] Family Report dated 11 June 2024, line 1042.

[149] Orders made 17 August 2023, paragraph 3(c).

[150] Father's affidavit filed 20 December 2024, paragraph 75.

[151] Family Report dated 11 June 2024, lines 1128 to 1128.

[152] Family Report dated 11 June 2024, line 760.

[153] Family Report dated 11 June 2024, lines 1476 to 1478.

[154] Affidavit of an autism specialist filed on 15 January 2024, paragraph 4.

[155] Affidavit of an autism specialist filed 15 January 2024, paragraph 42.

[156] Father's affidavit filed 20 December 2024, paragraph 124.

[157] Mother's affidavit filed 6 December 2024, paragraph 115.

[158] Mother's affidavit filed 6 December 2024, paragraph 73.

[159] Mother's affidavit filed 6 December 2024, paragraph 70.

[160] For example, Mother's Affidavit filed 6 December 2024, paragraph 234.

[161] Father's affidavit filed 20 December 2024, paragraph 227.

[162] Mother's affidavit filed 6 December 2024, paragraph 70.

[163] Mother's affidavit filed 6 December 2024, paragraph 173.

[164] Father's affidavit filed 20 December 2024, paragraph 183.

[165] Father's affidavit filed 20 December 2024, paragraph 184.

[166] Father's affidavit filed 20 December 2024, paragraph 193.

[167] Affidavit of the autism specialist filed 15 January 2025, paragraph 42.

[168] Affidavit of the autism specialist filed 15 January 2025, paragraph 42.

[169] Family Report dated 11 June 2024, lines 1654 to 1658.

[170] Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC 93-143 at [39] and Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [60].

[171] Stanford v Stanford [2012] HCA 52.

[172] Stanford v Stanford [2012] HCA 52 at [35] - [36].

[173] Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [73].

[174] Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [65] and [71].

[175] See Wardman & Hudson [1978] FamCA 68; (1978) FLC 90-466; and In the Marriage of Biltoft [1995] FamCAFC 45; (1995) FLC 92-614.

[176] See Family Law Act (Cth) s 79(4)(c).

[177] See Watson & Ling [2013] FamCA 57; (2013) 49 Fam LR 303 at [13] per Murphy J.

[179] Wife's (Further Amended) Initiating Application filed 6 December 2024, paragraph 42.

[180] Husband's Outline of Case Document, page 24 of 27, paragraph 76.

[181] Wife's (Further Amended) Initiating Application filed 6 December 2024, paragraph 35.

[182] Husband's Outline of Case Document, page 15 of 27, paragraph 32.

[183] Husband's Outline of Case Document, page 24 of 27, paragraph 77.

[185] Phillips & Phillips (2003) FLC 93-104 at [45] to [46].

[186] Wife's (Further Amended) Initiating Application filed 6 December 2024, paragraph 44.1.

[187] Affidavit of the single expert forensic accountant filed 6 January 2025.

[188] Wife's affidavit filed 6 December 2024, paragraph 229.

[189] Husband's affidavit filed 20 December 2024, paragraphs 400 to 401.

[190] Husband's affidavit filed 20 December 2024, paragraph 402.

[191] Wife's affidavit filed 6 December 2024, paragraph 190.

[192] Schedule D1 to report of the single expert forensic accountant being page 24 of 34 of his affidavit filed on 6 January 2025.

[193] Wife's affidavit filed 6 December 2024, paragraphs 199 to 202.

[194] Husband's affidavit filed 20 December 2024, paragraph 406.

[195] Husband's affidavit filed 20 December 2024, paragraph 406.

[197] Husband's affidavit filed 20 December 2024, paragraph 450.

[199] Husband's affidavit filed 20 December 2024, paragraph 491.

[201] Husband's affidavit filed 20 December 2024, paragraph 363.

[202] Husband's affidavit filed 20 December 2024, paragraph 365.

[203] Affidavit of the single expert forensic accountant filed 19 December 2024, page 31 of 34.

[205] Wife's affidavit filed 6 December 2024, paragraph 144.

[206] Wife's Financial Statement filed 6 December 2024.

[208] See also Lambert & Jackson [2010] FamCA 357.

[209] Husband's affidavit filed 20 December 2024, paragraph 386.

[210] Rodgers v Rodgers (No 2) [2016] FamCAFC 104, page 171.

[211] Wife's affidavit filed 6 December 2024, paragraph 213.

[213] Husband's affidavit filed 20 December 2024, paragraph 519.

[217] See also Lambert & Jackson [2010] FamCA 357.

[219] Costs Notice filed by the Wife on 13 February 2025.

[220] Husband's affidavit filed 20 December 2024, paragraph 378(d).

[221] Chorn & Hopkins [2004] FamCA 633 at [56].

[222] Trevi & Trevi [2018] FamCAFC 173 at [84]; Waterman & Waterman [2020] FamCA 369 at [118].

[223] Affidavit of the single expert forensic accountant filed 19 December 2024, page 10 of 34.

[224] Affidavit of the single expert forensic accountant filed 19 December 2024, page 10 of 34.

[225] Affidavit of the single expert forensic accountant filed 19 December 2024, page 24 of 34, Schedule D1.

[226] Husband's affidavit filed 20 December 2024, paragraph 312.

[227] Husband's affidavit filed 20 December 2024, paragraph 314.

[228] Wife's affidavit filed 6 December 2024, paragraph 182.

[230] Husband's affidavit filed 20 December 2024, paragraph 315.

[231] Husband's affidavit filed 20 December 2024, paragraphs 318 and 319.

[232] Wife's affidavit filed 6 December 2024, paragraph 177.

[233] Wife's affidavit filed 6 December 2024, paragraph 180; Husband's affidavit filed 20 December 2024, paragraph 319.

[235] Husband's affidavit filed 20 December 2024, paragraph 325.

[236] Wife's affidavit filed 6 December 2024, paragraph 190.

[237] Wife's affidavit filed 6 December 2024, paragraph 191; Husband's affidavit filed 20 December 2024, paragraph 327.

[238] Husband's affidavit filed 20 December 2024, paragraph 330.

[239] Husband's affidavit filed 20 December 2024, paragraph 333.

[240] Wife's affidavit filed 6 December 2024, paragraph 192.

[241] Wife's affidavit filed 6 December 2024, paragraph 195; Husband's affidavit filed 20 December 2024, paragraphs 334 and 335.

[242] Wife's affidavit filed 6 December 2024, paragraph 204.

[243] Husband's affidavit filed 20 December 2024, paragraph 346.

[244] Wife's affidavit filed 6 December 2024, paragraph 206.

[245] Husband's affidavit filed 20 December 2024, paragraph 16.

[246] Husband's affidavit filed 20 December 2024, paragraph 378(d).

[248] Husband's affidavit filed 20 December 2024, paragraph 383; Wife's affidavit filed 6 December 2024, paragraph 210.

[249] Wife's affidavit filed 6 December 2024, paragraphs 212 to 217.

[250] Hayne & Hayne [1977] FamCA 41; (1977) FLC 90-265; Garrett & Garrett [1983] FamCA 55; (1984) FLC 91-539.

[251] Wallace & Wallace [2022] FedCFamC1F 536 at [74].

[252] Wife's Outline of Case Document filed 17 January 2025, page 13 of 16.

[253] Wife's affidavit filed 6 December 2024, paragraph 207.

[254] Wife's affidavit filed 6 December 2024, paragraph 208.

[255] Affidavit of the single expert valuer filed 16 December 2024, page 39 of 49.

[256] Affidavit of the single expert valuer filed 16 December 2024, page 42 of 49.

[257] Wife's affidavit filed 6 December 2024, paragraph 211.

[258] Wife's affidavit filed 6 December 2024, paragraph 209.

[259] Wife's affidavit filed 6 December 2024, paragraph 234.

[260] Wife's Outline of Case Document filed 17 January 2025, page 13.

[261] Husband's Outline of Case Document filed 17 January 2025, paragraph 6.43.

[262] Wife's Outline of Case Document filed 17 January 2025, page 13.

[263] Wife's Outline of Case Document, page 12.

[266] Mother's affidavit filed 6 December 2024, paragraph 210.

[267] Mother's affidavit filed 6 December 2024, paragraph 219.

[268] Mother's affidavit filed 6 December 2024, paragraph 220.

[269] Mother's affidavit filed 6 December 2024, paragraph 230.

[270] Mother's affidavit filed 6 December 2024, paragraph 231.

[272] Mother's affidavit filed 6 December 2024, paragraph 236.

[273] Father's affidavit filed 20 December 2024, paragraph 466.

[275] Clauson & Clauson (1995) FLC92-595 at 81,911.

[276] Husband's affidavit filed 20 December 2024, paragraph 445.

[277] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.

[278] The account is to be transferred to the wife pursuant to these orders