Novakova & Novakova [2025] FedCFamC1F 608 | Case summary

Novakova & Novakova [2025] FedCFamC1F 608 | Case summary | Zoe

[3]

The husband was born in New Zealand and moved to Town C in 2004. He is a dual citizen of Australia and New Zealand.
The wife was born in Country B and moved to Australia in 2010. She is a dual citizen of Australia and Country B.
The parties met in 2010 and were married in 2013. They resided in Town C for the majority of the relationship, save for a 6-month period where the parties lived in Country B.
X was born in Town C in 2014 and is presently 11 years of age. Y was born in Town C in 2019 and is presently 6 years of age. Although both children have primarily resided in Australia since their birth, they also hold Country B citizenship.
In February 2014, the wife ceased employment. The husband was employed as supervisor earning approximately $120,000 per annum. In 2017, the husband commenced employment in the construction industry. In 2018, the wife recommenced part-time employment working 2 days per week on approximately $30 per hour. In 2019 the husband commenced employment in the construction industry at a different company. Later that year, the wife resigned from her part-time position.
In 2020, the parties jointly acquired the former matrimonial home situated at D Street, Town E, Queensland.
In July 2023, the wife travelled with the children to Country B as the maternal grandmother was in the advanced stages of cancer. The husband agreed to the travel but did not travel with the wife and children. The husband deposes it was the intention of both parents that the children would remain Country B for a period of 2 months and were scheduled to return to Australia on 27 August 2023.
In August 2023 the wife extended her stay in Country B to spend more time with her mother. The parties agreed the children would attend school and kindergarten in Country B until they returned to Australia.
In September 2023, whilst in Country B, the wife administered to X micro doses of psylocibin (magic mushrooms) every third day over a 3 - 4-week period.[1] In October/November 2023 the wife administered THC oil to X.
In December 2023, the maternal grandmother's condition deteriorated after showing signs of improvement, which promoted a further extension of the wife and children's stay in Country B.
On 17 December 2023 the wife, during a telephone conversation, told the husband she would be staying permanently in Country B with the children. On 18 December 2023 she told the husband she wanted to end the marriage after becoming romantically involved with a former school friend, Mr H.
The wife deposes on 18 December 2023, the husband consented to the children living in Country B with her.[2] The husband deposes the wife suggested he move to Country B to "find work and provide support and spend time with the children".[3] He rejected this offer and on Christmas Day 2023 flew from Australia to Country B with the intention of returning the children to Australia. The wife deposes the parties agreed for the children to spend a period of 4 weeks in Town C before returning to Country B to commence the school year. The wife asserts the husband has unilaterally withheld the children from her since 31 December 2023, when he returned to Australia with the children. The husband denies he consented to the children permanently relocating to Country B.
On 19 March 2024, the wife's solicitors advised the husband's solicitors the wife had applied to the Country B Central Authority to commence proceedings under the 1980 Convention on the Civil Aspects of International Child Abduction ("the 1980 Convention") seeking return of the children to Country B. Both Australia and Country B are parties to the 1980 Convention.
The husband commenced these proceedings on 21 March 2024, and on 22 March 2024, the children were placed on the airport watch list.
Under Article 16 of the 1980 Convention, the proceedings were stayed pending resolution of whether an application under the 1980 Convention would be pursued by the Country B Central Authority. On 21 December 2024, the Australian Central Authority advised the wife the Country B Central Authority declined to make a request to the Australian Central Authority to commence proceedings, because the children were not habitually resident in Country B.
On 21 March 2025, the wife filed a Response to the husband's application.
Thereafter various procedural orders were made, prior to the trial commencing on 2 June 2025. The trial proceeded for four consecutive days and concluded on 16 June 2025 with the final submissions of the husband.

[49]

The husband gave evidence and was cross examined by counsel for the wife. He was responsive and did not prevaricate about providing answers. He impressed as thoughtful and considered.
On a couple of occasions, when asked similar questions his answers differed. For example, his evidence about which parent attended medical appointments with the children and made decisions about their medical issues, differed. He explained the difference in his second answer to that question, which was that he was at most appointments, the parents discussed the decision to be made and then made a decision, was because his ADHD made it difficult to give answers under pressure. He then thought about the questions previously asked and sometimes thought the previous answer he had given was not correct, as was the case with that question. Exhibit F-12, which is the treatment summary of Dr O dated 28 May 2025, states that both parents were at most consultations and corroborates the husband's corrected evidence. I accept the husband's explanation. I consider him to be a truthful witness who faced difficulties with the rapid series of questions, because of the limitations of his ADHD.
The wife gave evidence and was cross examined by counsel for the husband. Her evidence was problematic at times and I treat her evidence with a degree of caution. She was unable to answer straightforward questions about the viability and practicality of her property and spousal maintenance proposals. She rather seemed to think it was the husband's responsibility to figure out how her proposals would be implemented or be paid for by the husband. When asked questions she perceived to be contrary to her interests, she often answered that she was unable to recall. When asked whether the contents of paragraph 127 of her trial affidavit were true (about her relationship with her new partner, Mr H, ending if the children were not returned to Country B), the wife said she was unable to recall the contents of the paragraph, because her ADHD affected her memory and capacity to recall. When asked if that were so, how did she reconcile answering earlier in the day that the contents of her affidavit were true and correct, if she was unable to recall what was in the trial affidavit, she was unable to provide a convincing answer.
During cross examination she was also apparently unable to recall how many days she had micro-dosed X or how much psilocybin she had given him, until she agreed with the statements she had made to the family report writer during the assessment process. Whilst I accept the wife has difficulties arising from ADHD and she would have faced similar problems to the husband in answering continual questioning, I was left with the uneasy impression she attempted to avoid answering difficult questions which she perceived were contrary to her interests and rather said she was unable to recall substantial parts of the evidence in her affidavit. I accept she thought she was attempting to tell the truth, but there were obvious deficiencies in her evidence.
Mr H the wife's partner was also cross examined by the husband's counsel. He answered questions in a direct and forthright manner, including questions about his past macro-dosing of psilocybin. He seemed very surprised and unaware about the prospect of having to contribute financially to the wife's household and did not appear to appreciate the practical and financial hurdles which would need to be overcome to achieve the wife's objective of setting up house together. I accept him as truthful.
Ms J, the wife's friend and neighbour in Town C was cross examined electronically by the husband's counsel. She was clearly aligned with the wife and sought to give answers through the prism of her loyalty to her friend. She and the husband obviously had some difficulty in communications and the relationship between them was somewhat strained. I view her evidence through that limitation.
Ms R prepared a family report dated 8 May 2025 and was cross examined electronically by both counsel. She was a highly impressive and thorough professional witness. Her observations of the parties and her evaluation of the family dynamic were consistent with my observations. Her Family Report and oral evidence were considered, insightful, and logical. I accept her opinion and attach significant weight to her evidence. Her evidence is discussed in detail throughout these reasons.

[70]

The husband has also addressed a possible source of X's mould induced inflammation by mould remediation measures in his home including replacement of a split system air conditioning unit, which according to the wife have alleviated X's symptoms.[4]
The husband correctly acknowledges the path to X's current stable health has been long and arduous for all concerned and it has been difficult to find the correct balance of prescription medications for him, as explained by Dr O in Exhibit F-12. Dr O describes X as medication free (except an antihistamine for hay fever as at January 2024) and described him as well.
Exhibit F-21 is the consultation notes of Dr O for X, where she states X has no current medications, school is good according to dad and report card - little bit behind in English and Science, behaviour is good. I accept X is doing well and is medication free. I refer in greater detail below to X's school progress.
During cross examination it became apparent the wife had devoted vast amounts of energy and time to researching a possible diagnosis for each of the children's multitude of alleged symptoms and possible supplements and nonprescription medications, which she thought would assist the children. That is also apparent from her statements in Exhibit F-14, which is an email from the wife to Dr O, wherein she states the husband has accused her of Munchausen Syndrome by Proxy.
The wife asserts the husband's attempts to characterise the administration of vitamins as inappropriate or as harmful parenting, is misleading and indicative of his tendency to over scrutinise her parenting decisions without justification. She further asserts the criticism lacks any medical foundation, the children were not harmed in any way, and there is no suggestion the wife administered the supplements in any way other than to support the children's general wellbeing.
Whilst I accept the wife's motivations were not malicious and she intended to benefit the children, the obvious problem is that continuing to administer non-prescribed substances to the children, and particularly X, is not currently recommended by his treating paediatrician, Dr O and he is doing well without any such supplements. When viewed in the context of her administration of other non-prescribed substances, including THC oil and psilocybin, discussed below, it is impossible to ascertain or predict with any certainty, what the wife might consider appropriate to administer to the children in the future.
In that context and because of her intractable beliefs about the children's health issues, including her apparent belief X has PANS,[5] contrary to the opinion of his treating specialists, and that Y has Autism Spectrum Disorder/Attention Deficit Hyperactivity Disorder (ASD/ADHD) based on a spurious online diagnosis[6] and contrary to Dr O's opinion, the husband contends, and I accept, the court cannot be confident the wife would refrain from further administering non prescribed medications for the children. It is also not known whether any such substances would have an adverse effect on the children's health.
The second asserted risk factor is the wife administering illegal substances to X, specifically THC oil and psilocybin.
In her trial affidavit the wife deposes to giving X THC oil on 28 November 2023. She says she gave the child 0.3 ml of cannabis oil that contained 5mg of CBD and 5 mg of THC, after he had been screaming for 4 hours. [7] The wife had used the oil since arriving in Country B to deal with her sleeping issues and the oil is available in Country B from government dispensaries, without prescription, presumably for adults.
Prior to discussing the wife's administration of psilocybin to X it is useful to observe that psilocybin (magic mushrooms) is a psychedelic drug. In Australia, from July 2023 the Therapeutic Goods Administration approved medicines containing psilocybin to be prescribed only by authorised psychiatrists, for patients with depression resistant to other treatments.[8]
The wife deposes:

[79]

During cross examination the wife was challenged about both her administration of psilocybin to X and her use of psilocybin. She admitted that whilst the children were in Country B she had struggled to manage their behaviours, and her own mental health had a bearing on her ability to manage the situation with the children.
She also admitted she had given X THC oil, a benzodiazepine which she had been prescribed some years earlier and had stored in a cupboard and on another occasion, she gave X Valium, which had been prescribed for him 2 years earlier. It did not occur to her to call any medical professional for help. In September 2023, she gave X psilocybin, without it being prescribed for him. She commenced giving him an eighth of a 100 mg gummie, which she estimated was about 12.5 mg and eventually increased the dose to 100 mg.[14] She was unable to recall how many days she administered the gummies to X until it was put to her she had told the family report writer, she had done so for 3 to 4 weeks. She then said she had dosed X every second, third or fourth day. She agreed dosing X was not a spur of the moment decision, in terms of her desperation about the child's conduct and that she had effectively conducted a do-it-yourself medical trial on her son. That admission clearly contradicts the submission of the wife's counsel's that dosing of X was careful and considered, when clearly it was highly reckless and irresponsible. The wife also accepted that if she had microdosed X in Queensland, she could be liable for a conviction for supplying a dangerous drug to a minor.
The wife also agreed she had microdosed herself with psilocybin and had availed herself of a psychedelic coach, who guides people through doses of psilocybin. She further admitted to macrodosing herself on two occasions and had availed herself of the services of a trip sitter, whose job was to monitor her during her trip to ensure no adverse outcomes. She seemed to think she had been responsible in this regard because she had arranged for the children to be cared for by her parents on one occasion and on the other, they were at school and cared for by a babysitter.
After hearing her evidence during cross examination, I was not left with the impression the wife was genuinely remorseful for microdosing X with psilocybin, but rather her remorse and regret arose from the potential adverse consequences for her in these proceedings because of what she had done. I was left with the impression the wife thought taking experimental psychedelic drugs for both herself and X was nothing really unusual and a legitimate exploration of ways to assist both of them with their mental health and special needs.
Mr H was also cross examined about his use of psilocybin, which was not traversed in his affidavit. He admitted to knowing the wife had given X illicit drugs and that he had both microdosed and macrodosed psilocybin. He had macrodosed 6 or 8 times since 2018 and last did so in Spring 2023 before he met the wife. When asked whether he would microdose his own children, he said he would not because kids' bodies and brains were still developing, and they shouldn't be given any substances.
As to his own health problems, he said he was diagnosed around 2017 with ADHD but had not taken any prescription medication for it since 2018, when he commenced to experiment with psilocybin.
I now turn to the other limb of the asserted unacceptable risk, and that is whether the wife would remove the children from Australia.
According to the husband's counsel, Exhibits F-6 and F-5 demonstrate the wife's underlying intention to remove the children from Australia.
Exhibit F-6 is an extract from the wife's application to the Country B Central Authority for commencement of proceedings under the 1980 Convention, for return of the children to Country B. The relevant extract is as follows:

[87]

As to the asserted risk the wife poses to the children, the husband is fearful the wife's judgement is so impaired she may once again administer illicit substances to one or other of the children and she might remove the children from Australia.
The wife contends that she does not pose any risk to the children, let alone an unacceptable risk. She characterises her administration of an illicit hallucinogenic substance to X over a three-to-four-week period as a regrettable incident, which should be understood in the context of a mother acting out of desperation to alleviate her son's distress and that it was a momentary lapse in judgement, which she now admits was a mistake. That isolated incident should not be elevated as determinative of the wife's overall parenting capacity, and to do so would ignore her longstanding history as the children's primary carer absent any pattern of risk behaviour.
In this case, there the wife readily admits she has:
- administered many and varied nonprescription medications to the children, which are referred to in detail below;
- administered to X THC oil and repeatedly microdosed him with psilocybin over a 3 -4-week period.
As discussed above, I do not accept the wife's characterisation of her conduct as an isolated incident or momentary lapse of judgement, when her administration of the drug occurred systematically over a number of consecutive weeks. Indeed, her own evidence was that she methodically increased the dosage over the period of administration of the drug to the child. There is nothing momentary in the manner in which she acted, nor did she pause to reflect during that time about the potential grave risks to the child or even think to obtain proper medical advice. Her arguments as at the date of trial, continue to demonstrate a remarkable lack of insight into the potential adverse consequences for X and a propensity to attempt to exonerate herself, rather than accepting responsibility. That attitude instils no confidence that the wife's protestations about never again administering illicit substances to X or indeed to Y, can genuinely be relied upon, particularly if she had primary care of the children in Country B. Nor can I be confident if she found herself in a similarly stressful situation with either child that she would not seek out and administer alternative therapies, including illicit substances to the children, if she thought it would alleviate their behaviour. I consider there is a reasonable likelihood of her so doing.
The possible consequences of repeating her past actions, including administering psilocybin to a child are obvious and grave.
After considering, evaluating and weighing the relevant cumulative evidence I conclude and find the wife poses an unacceptable risk to the children arising from administration of unprescribed medications and in particular illicit substances to X. In reaching that conclusion I have had regard to the following list of non-exhaustive factors:
- The wife's personal history of use of illicit substances and in particular psilocybin.
- Her cavalier and casual attitude to her personal use of psilocybin, namely she does not seem to believe there is any danger in using the substance, which I infer from her having taken it on two occasions, albeit she engaged a trip sitter and arranged for the children to be cared for;
- The apparent easy access to the substance in Country B, as per the evidence of both the wife and Mr H;
- The fact that her partner Mr H has taken psilocybin on multiple occasions, the last in the spring of 2023;
- Her proven inability to cope with X's rages in September 2023 when she administered the drug to him;
- Her failure to obtain conventional medical advice when she was experiencing difficulties with the child;
- The insincere nature of her remorse and attempt to deflect blame on the husband when she was in Country B caring for the children and he was in Town C working to financially support the family;
- Her inability to consider the potential grave harm to the child; and
- Her propensity to medicate the children with non-prescribed substances.
I also find the wife poses an unacceptable risk of removing the children from Australia and of not returning them to Australia, if they are permitted to travel to Country B. I make that finding after considering the cumulative effect of the evidence and the objective evidence of Exhibits F-5 and F-6. If the opportunity were presented, I consider the wife would readily remove the children from Australia, if she were able to do so.
In reaching the latter conclusion, whilst I am mindful that Country B is a signatory to both the 1980 Convention and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("1996 Convention"), the wife failed to adduce any expert evidence about the prospect and manner of enforcement in Country B of Australian orders, accepting the orders would likely be capable of registration in Country B. Neither did she adduce expert evidence about the possibility of variation of Australian parenting orders in Country B, once the children were present in Country B. The evidence in that regard was absent and does not provide any confidence that any orders made in this court would continue without variation by the Country B courts, if the wife were to make further applications for parenting orders.
I will address below whether the risks identified can be ameliorated during my consideration of what orders are in the best interest of the children, taking into account the legislative considerations (s 60CC(2)).
I now turn to the remaining statutory considerations.

[90]

Both parents agree the children have identified special needs but disagree about the diagnoses and the extent of those needs.
Turning first to X.
The husband relies on the diagnosis of X's health conditions, as assessed and diagnosed to by his treating paediatrician, Dr O.
Exhibits F-12, F-13 and F-18 are letters from Dr O. Adopting chronological order, F-13 is an email from Dr O dated 13 January 2024 addressed to both parents. Dr O identifies that X fulfills the DSM 5 criteria for ASD and that he has an additional neuro inflammatory condition which is triggered by mould.
F-18 is a letter from Dr O dated 28 May 2024. In that letter Dr O notes she has been X's paediatrician since June 2018 and between that time and June 2022, she identified X met criteria for autism spectrum disorder, anxiety and possible ADHD. In early 2022 /late 2021 X developed significant OCD type behaviours and Dr O wondered about a diagnosis of PANDAS. X was referred to a consultant at BB Hospital, Dr S, who felt X did not have PANDAS as at December 2022. X was subsequently referred to a consultant immunologist, whom he saw in May 2023.[15] Professor Q felt his symptoms were suggestive of mast cell activation syndrome triggered by mould.
Exhibit F-12 is a letter from Dr O dated 28 May 2025 which summarises her engagement with X as his paediatrician for the previous eleven years.
In her trial affidavit, the wife refers X suffering from complex neuropsychiatric conditions and having been diagnosed with ASD, ADHD, Generalised Anxiety Disorder and another medical condition.[16]
She deposes to X experiencing muscle pains, rashes, headaches, hallucinations as well as cognitive difficulties, including rage episodes, obsessive and compulsive type behaviours, sensory processing issues and short attention span.[17] Because of the symptoms his treating doctors initially suspected that X may have OCD or PANS and that his symptoms have been under consistent review by his treating doctors, although he has never received a formal diagnosis of OCD or PANS. The wife agrees X's two main treating medical specialists in Australia are Dr O, a paediatrician and Professor Q, an allergist and immunology specialist.
As to the wife's belief that X has PANS or PANDAS, in her email dated 2 August 2022 to Queensland Health the wife said:

[92]

As referred to above, the consultation notes of Dr N, a general practitioner in Country B, whom the wife consulted, dated 29 September 2023 and 1 December 2023 refer to the wife advising Dr N that X being diagnosed with PANS.[19]
Self-evidently the wife continued to believe X had PANS, despite no formal diagnosis and the contrary opinion of Dr S. I prefer the opinion of Dr S and Dr O to that of the wife's and accept their view of Xs' medical issues.
The wife further deposes to various medications which were prescribed for X in May 2023 and at paragraph 39 of her affidavit the wife lists the nonprescription supplements she gave to X prior to separation to manage his symptoms. She asserts some were recommended by Dr O and Professor Q, and others based on extensive research she has undertaken about X's symptoms and difficulties. These supplements are:
- PS128 a nervous system probiotic;
- Benfotiamine, vitamin B1 to assist with nerve pain;
- GABA, and naturally occurring amino acid which helps with feelings of anxiety stress and fear;
- Candida Stop which uses natural ingredients with antifungal properties an anti toxins to alleviate fungal infections;
- Magnesium Bisglycinate to relieve anxiety and reduce pain;
- Lithium 1000 mcg, a low dose lithium supplement to maintain health cognition and memory;
- CuraMed, an antioxidant which assists with inflammation.
According to the wife, based on observations during her visits in November 2024 and March 2025, X has regressed in his symptoms similar to how he was in July 2024, before she and the children left for Country B. She asserts he is irritable and has rage episodes, often getting very angry when asked general questions about his day and he growls at people, including his mother, instead of using words, which is indicative of his distress becoming more acute. The wife's opinion is contrary to the husband's view of the child and Dr O's opinion, as noted in her consultation notes of January 2025.[20] I prefer the expert opinion of Dr O who has been X's treating paediatrician for the last 11 years and the observations of the husband, in whose household X has lived since January 2024. I refer below to X's current progress at school, which supports the proposition X has greatly improved and is currently doing well.
According to the husband, X has stabilised and no longer requires medication, which the husband communicated to the mother around January 2024. From the husband's perspective, X is currently engaged well at school. Dr O, in Exhibit F-12 notes that when X and the husband attended on her personally in January 2025, with the wife attending via Zoom from Country B, he was well and other than some mild hay fever symptoms for which he was taking antihistamines, he was not taking any medication.
Both parents agree X's behaviour has been challenging and dysregulated and he has, in` the past found school and socialising difficult. The wife provides a synopsis of X's historical difficulties at school and problems socialising with other children. She refers to examples from prep to year 2 when X was struggling at school and she was receiving consistent feedback from his teachers about X's behaviour towards teachers and peers which involved repeated screaming and yelling in the classroom.[21]
The husband does not dispute that X had a difficult and challenging time at school between 2021 and 2022 but contends his school experience has been much more positive since recommencing school in January 2024.[22] He denies the school has suppressed the child's behaviour records, as suggested by the wife to the family report writer[23] and considers if there are no such school reports, it is because X has not been involved in any noteworthy behaviour incidents. The husband deposes X was sometimes late for school in 2024, although he was usually happy to attend. He does not have a large friend base but is well liked by other kids who often call out hi to him in public. The husband further says sometimes children will knock on the front door and ask X and Y to go and play, which they sometimes do, and X has told him over the last year his friend Will would often go and eat lunch with him.
The husband states at a parent teacher interview in March 2025, X's teacher advised him he had developed close friendships with two children in his class and he was now sitting in the Year 5 eating area a few times a week. According to the husband X seems very happy.
X's school reports for Semester 1 2024 and Semester 2 2024 are included in the husband's tender bundle and extracts are included in Exhibit F-20. The reports describes X's behaviour as:

[99]

Since he returned to Australia with the children in December 2023, the husband has had the sole care of the children, who live with him in the family home in Town C. There have been three periods when the mother has visited Australia (March 2024, October 2024 and March 2025) and sought to spend time with the children although she has not spent unsupervised time with them since January 2024.
Upon arrival in Australia, the husband made arrangements for both children to attend a telehealth appointment with their paediatrician, Dr O, who continues to monitor X. As referred to above, X does not currently take any medication, prescribed or otherwise, except for occasional hay fever and ibuprofen for growing pains.
X has recommenced school at T School, where he is progressing well and is settled. The husband relied upon X's recent report cards as to his school progress.[26]
In 2024 Y attended a local kindergarten on Thursdays and Fridays, but since the commencement of the 2025 school year she has attended T School in prep and is doing well. According to the husband, which was not successfully challenged by the wife's counsel, Y was doing great, there were no concerns from the school's perspective and Y did not have any food allergies, as claimed by the wife.
Because the husbands usual work hours are from 6:00 AM to 4:00 PM on Monday to Friday, he has employed live in au pairs to assist with the children. According to the husband, in the evenings he packs the children's lunches for school, is up by 5:00 AM and leaves for work at 5:45 PM. The au pair assist the husband caring for the children before and after school and the current au pair is a local woman who is in the process of completing her Certificate III in Childcare. In the afternoons the husband prepares meals for the family, does dishes and housework and generally cares for the children. Every night he reads Y a book and X reads out loud from his book. His work has afforded him flexibility including working from home when needed.[27]
Whilst in their father's care, the children have had extensive electronic communication with their mother while she has remained in Country B, although the mother has expressed frustration the children are frequently distracted during electronic communication with her. Given the ages of the children, it may well be likely that they are frequently distracted by the desires to spend time on their electronic devices.
The husband was cross examined by counsel for the wife about his proposal the children spend indefinite supervised time with their mother. I am not critical of the husband in this regard, as he is obviously concerned by the possible grave consequences to X of being given psilocybin by his mother.
The family report writer observed both children display affection for their father and that he acted appropriately to diffuse a number of arguments between X and Y, when Y's behaviour was provocative towards X. There were no specific criticisms levelled at the husband's capacity to manage the children, although the report writer observed during the observation session the children seemed to consistently fight and Y continued to push the boundaries when her father gave her clear directions.
The wife is highly critical of the husband's parenting capacity and work hours which she asserts limit his capacity to effectively parent, his reliance on a succession of five au pairs to assist with the children's care whilst he is at work and the husbands lack of family support in Town C.
If the wife intends to remain in Country B, as appears to be her current plan, there is really no other option for the husband than to employ careers to assist with the children to enable him to continue his employment which is necessary to financially support the family.
The husband has acknowledged problems with a past au pair, Ms V, who was employed very briefly in October 2024 and I accept he took appropriate actions in this regard. The wife has also attempted to undermine and criticise the au pairs employed by the husband and has a litany of complaints about them. I accept that Town C is a remote location and that it may be difficult at times to obtain qualified carers, but I do not accept that reflects poorly on the husband's parental capacity. During cross examination he impressed me as a thoughtful and considered parent who prioritised his children's needs in very trying circumstances.
I accept the husband has the capacity to provide for the children's developmental, psychological emotional and cultural needs, particularly because of the significant improvement in X's behaviour and school progress since he has resumed living in Town C with his father and because X no longer requires constant medication, prescribed or otherwise. I also accept Y is doing reasonably well in her father's care.
Prior to separation the wife was the children's primary carer in Town C and she solely cared for them whilst they were in Country B in 2023 without the husband. I accept the children and their mother have a loving and secure relationship, but it has been fraught with challenges.
The wife also asserts that prior to the children returning to Australia in December 2023, she was primarily responsible for the children's medical needs. I observe the husband told the family report writer that at the time the children returned to Australia, X was taking 19 tablets a day and Y was taking 8 tablets a day and the wife had provided him with a bag of medication and a corresponding list.
The observation of the children and their mother during the observation session for the family report was warm and positive. The wife demonstrated a capacity to provide an appropriate and rational response to Y when she wanted to open presents whilst X was opening his.
Whilst the wife attempted to portray herself as the more involved and competent parent, the circumstances surrounding her administering psilocybin to X in September 2023 paints a different picture. According to both parents and I accept, X's challenging behaviours whilst in Country B with his mother, were the catalyst to her administering psychedelic drugs to him. At paragraph 40 of the family report, Ms R records the husband reporting to her that the wife was not coping with the children whilst they were with her in Country B and that she sent him text messages stating I fucking hate him (X), Lucky you don't have them and I wish child protection services would take them.[28]
According to the wife her despair and exasperation about X's behaviour was the reason she administered psilocybin to the child. She told the family report writer that she gave X illicit drugs when she found she was not coping with his aggressive outbursts. X's behaviour has been historically challenging, and I accept it would at times be difficult for both parents to care for him. However, it is impossible to rationally justify giving a child illicit psychedelic drugs, as the wife has attempted to do. Her counsel's description of a controlled and careful administration of an illicit drug to a child over a 3-to-4-week period, with ever increasing doses, beggars belief. I do not accept the asserted remorse of the wife as genuine, nor demonstrative of insight on her behalf or that this isolated incident should not be determinative of the mother's overall parenting capacity. The administration of an illicit drug to a child over a sustained period is not an isolated incident arising from despair. It was a calculated decision and experiment on her part which continued for a number of weeks. I agree with the comments of Ms R that the wife's actions would suggest that she had a poor understanding of [X's] needs and the effects of giving a child illicit drugs who is at a stage where he is continuing to develop and grow, and that this particular drug [...] may have placed his physical safety at risk.[29]
I also agree with the comments of the family report writer, as expressed at paragraph 76 of the family report, as follows:

[111]

Having found the mother poses an unacceptable risk of harm to the children; I now turn to the issue of amelioration of the harm and what orders for their living arrangements are in the children's best interests.
As to the orders in the children's best interests, I first turn to responsibility for long term decision making.
Section 61C(1) of the Act provides each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D).
Orders made allocating parental responsibility for a child in relation to "major long-term issues" to more than one person, may provide for joint or sole decision-making in relation to all or specified major long-term issues (s 61D(3)). The Act defines major long-term issues as the child's education, religion, culture, health, name, and change living arrangements (s 4(1)). Section 61DAA defines the requirements of joint decision-making, which are to consult each other in relation to each such decisions and to make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person, in respect of minor decisions for the child which are outside "major long-term issues" (s 61DAB).
The husband sought orders for sole decision-making responsibility for the children and the wife sought orders for the parents to have joint decision-making responsibility for long term issues.
None of the evidence suggested it would be in the children's best interests for there to be an order for joint long-term decision-making responsibility. According to the family report writer and I accept that the parents have a poor co-parenting relationship which consists of conflict, mistrust and a lack of effective communication.[30] I consider it appropriate that whichever parent the children live with, should have sole decision-making responsibility for major long-term issues and I will make the appropriate order.
In the context of the ongoing acrimonious parental relationship and the findings I have made, it is untenable to expect any cooperative decision making to be undertaken or even reached in the future. I therefore intend to make an order the parent with whom the children live shall have sole decision-making responsibility for long term issues. However, prior to making any such decision, that parent shall advise the other parent of any such proposal, and after consideration of a response from the other parent, the parent shall make the decision and thereafter advise the other parent of the decision within 2 days of making the decision. That process will enable the non-residential parent to be appraised of and involved in the decision making process without delaying any decision to be made.
Having found the wife poses an unacceptable risk of harm to the children, I now turn to the issue of amelioration of the harm and what orders for their living arrangements are in the children's best interests.
In order to ameliorate the risk arising from the removal of the children from Australia if orders are made for the children to remain in Australia, a number of measures may be readily implemented. These include an ongoing watchlist order to continue until the children attain 18 years of age, or prior agreement between the parties, orders for the husband to retain the children's passports, and providing for the wife's time with the children to take place in Australia.
If orders are made for the children to live with the wife in Country B, removal of the children from Australia no longer remains an issue.
The issue of ameliorating the risk arising from her administering illicit and unprescribed substances to the children is more complex. Obviously an injunction would be required restraining the wife from doing so, irrespective of which country the children will live in. However, if the children were to live in Country B with the wife, concerns may arise about the efficacy of such an injunction. I refer to this below.

[114]

There are obvious positive aspects for the children to remain living in Town C with their father. These were identified by the family report writer at paragraph 82. First, they would continue to live with their father in the family home, where they have lived for the past 19 or so months. Those living arrangements offer the children familiarity and comfort with a settled routine.
Secondly, there will be no emotional upheaval for them nor disruption to their education and or physical surroundings.
Thirdly, if the children remain in Australia and the wife were to spend time with them in this country, there will be no risk that she would attempt to over hold them in Country B, thus addressing one of the husband's asserted risk factors.
Fourthly, the husband will be responsible for the children's medical needs and health issues, and they will not be at risk of being administered illegal substances or non-prescription substances, thereby addressing the husband's asserted risk factor. I am confident the husband will follow the advice of Dr O, who has been the children's paediatrician for many years.
The disadvantages include limited face to face time between the children and their mother and extended family members. It is difficult to make any assessment of the frequency of the wife's proposed travel to Australia, if the children remain living with their father. In her alternate orders, the wife did not propose orders for the children to spend time with her in Australia. Her proposals were for the children to travel to Country B four times each year to spend time with her.
Another disadvantage is whether the children's travel to Country B, as proposed by the wife, if the children remain in Australia, is likely to ever occur because of the limited financial resources of both parties.
Likewise, the wife's proposals contemplate time between the husband and the children during the Country B school holidays, when there is a dearth of evidence as to the husband's capacity to actually spend meaningful time with the children because of his employment obligations and limited holiday time and the financial impost of the proposed travel.

[115]

If the children are permitted to relocate to Country B, the wife asserts there will be a number of advantages. First, the children will be reunited with their mother who was their primary carer until the husband removed the children from Country B on 31 December 2023. If the children return to her care, she will be able to maintain the relationship between the children and herself. She contends, the relationship between herself and the children may become strained if the children normalise not seeing their mother for extended periods and the bulk of their communication is via technology, which would prevent her rebuilding the kind of connection she had with them prior to separation.[31] She is available to care for the children on a full time basis, and they will no longer be cared for by a succession of paid au pairs.
Secondly, the wife was the parent most involved with the children's health and medical needs, and she contends she is best placed to continue to do so.
Thirdly, she will ensure the children will benefit from her parenting style which is fair but inclusive, she will limit their screen time and encourage them to participate in other activities, which she says does not occur in Town C.
Fourthly, the children have no extended family in Town C and limited interaction with children outside of school, other than the occasional play date. In Country B, the wife will ensure the children actively engage with other children, cousins, extended family members and the children of her partner, which will be beneficial for their socialisation and development.
Fifthly, the wife had no friends in Town C, apart from Ms J and Mr W, in contrast to her extended family and the support network she enjoys in Country B, including her partner Mr H. The wife will benefit from that support.
A significant disadvantage to the children, if they are permitted to relocate to Country B, is that they would be placed in the care of a parent, whom I have assessed as posing an unacceptable risk of harm to them without satisfactory mitigating measures.
Another disadvantage is their inability to spend regular time with their father, who has been their sole parental carer since December 2023. A relocation to Country B will substantially affect the nature of the children's relationship with their father and will axiomatically reduce the amount and frequency of time between them.
A move to Country B will inevitably impact on "the children's stability and routine". The children would be required to adapt to a new country of residence, home and school. These logistical challenges created emotional and social challenges for children, particularly with the children's vulnerabilities. As identified in paragraph 83 of the family report, visiting a location, in this instance Country B, regardless of whether the environment is familiar to a child is vastly different to living there. The family report writer identified for most children there will be an adjustment during which they may experience difficulty regulating their own emotions or they may have difficulty expressing how they feel and as a result may internalise the emotions. She opined X may not cope with moving back overseas as it would be another significant change for him and a relocation to Country B could see a deterioration in his behaviour. The wife acknowledged to the family report writer it would be a "massive adjustment" for the children if they lived with her, and she would ensure the children have access to a counsellor to help them cope with the changes and she would support them emotionally. It is not clear how the wife would fund or access counselling services for the children in this regard.
There is also uncertainty surrounding the wife's capacity to cope with X and his rages and meltdowns, if that happens, as was evidenced by her inability to do so at the time she administered psilocybin to him.
Another disadvantage is the vagueness and uncertainty of the wife's proposed practical arrangements to accommodate and financially support the children, in the event her proposals for division of property and ongoing spousal maintenance are unsuccessful.
If the children relocated to Country B, there would be no certainty, other than the wife's say so, that she would refrain from administering unprescribed and illegal substances to the children, as she has done to X in the past, by administering THC oil and psilocybin to him. It is difficult to see how the risk contended by the husband could be satisfactorily mitigated by an injunction of this court when the wife is outside the jurisdiction. I have expressed my concerns about the sincerity of the wife's remorse and her future conduct absent court scrutiny and about the lack of evidence of available enforcement measures of an Australian injunctive order in Country B.
If the children are permitted to relocate to Country B, there must be concerns about the wife's future compliance with orders as proposed by her, to facilitate the children travelling to Australia, particularly if she is required to contribute to travel costs. The wife did not adduce any expert evidence about registration and enforcement of Australian court orders in Country B, nor about her prospects of making further application to the Country B courts to vary Australian orders, if the children are residents of Country B.
The cost of international travel between Australia and Country B is a significant impost for the family, regardless of where the children ultimately live, if it is the wife's true intention, as she profess, to remain living in Country B, if the children remain living in Australia.

[116]

Counsel for the wife in his final submissions urged the court to assess the children's future living arrangements on the basis of parental capacity of each parent. He submitted the assertion of unacceptable risk on the part of the husband was a red herring and the central issue was the capacity of each parent to meet the needs of the children.
Counsel for the husband focused on the unacceptable risk assertions arising from the wife's administration of an illicit hallucinogenic drug to a vulnerable nine-year-old child, X, and if the children are to remain living with the husband in Town C, the risk of the wife attempting to remove the children from Australia.
I do not accept the submissions of the wife's counsel, that the issue of unacceptable risk is peripheral to the central dispute. The wife's parental capacity and ability to meet the needs of the children is inexorably intertwined with her past conduct, that is systematically administering an illicit substance to her son when she was unable to cope with his behaviour. The administration of the drug was not a one-off incident, or controlled and considered, it was a calculated plan of behaviour with reckless disregard for the possible grave and adverse consequences to the child.
Having made positive findings as to unacceptable risk, I am unable to simply ignore those serious findings and to do so would be a dereliction of my judicial mandate to make orders in the best interests of the children.
Counsel for the wife contended his client was a diligent and competent parent, although he conceded she may at times have been overzealous in her medical decisions pertaining to the children. She had spent her life caring for and researching how to care for X, who was a difficult child with special needs and had dedicated her life to caring for the children.
The wife's counsel was critical of the husband's parenting capacity. He submitted the husband had been content for the wife to be the primary carer of the children prior to separation and that she was the parent more aware of and attuned to the complex needs of the children. Prior to separation the husband had effectively abrogated responsibility for the children's care to the wife and was only critical of her capacity after separation. He also submitted X's improvement had commenced whilst he was in Country B and there was no objective explanation why he had continued to improve in Town C. The improvement was not just because he returned to Town C. Further, he contended the father was not attuned to the needs of the children and the court should not have any confidence in his parental capacity. The wife's counsel further submitted the husband's answers during cross examination about Xs's supports at school and his belief that X does not need supports at school were indicative of poor parental capacity.
I do not accept the foregoing submissions of the wife's counsel. Whilst I accept the wife previously was the primary carer of the children and was zealously searching for ways in which to manage the children's needs, the fact is that in September 2023 she administered an illicit hallucinogenic drug to nine-year-old X, with scant regard for the possible consequences and without medical advice. As referred to above, an assessment of her parental capacity cannot take place in a vacuum and disregard or gloss over this serious and flawed conduct.
As to the criticisms of the husband, his answers in cross examination did not alert me to any deficiency in parental capacity. I accept he may not be as involved in searching for answers to the children's special needs, as was the wife, but he is adequately caring for the children given his work constraints. That X is doing well at school, has remained largely asymptomatic and is not taking any regular medication or non-prescribed substances, is a credit to the husband, as is the fact that the school has no complaints or concerns about Y. I accept it is challenging for the husband to work to financially provide for the children and to care for children with special needs but he has competently managed the juggling required thus far. Just because he does not meet the wife's expectations of her ideas of being an involved parent, does not mean he lacks parental capacity, in circumstances where, according to the children's treating paediatrician, they are doing well in his care. X has less frequent appointments with Dr O and Y currently no longer needs to attend upon her.
Consequently, and on a balanced consideration of all the factors referred to in these reasons, including the wife's freedom of movement, against a background of the children's best interests, I have also reached the conclusion the children's best interests are served by them remaining with their father in Town C, where they were born and have spent the majority of their lives.
That will provide for continuity and stability, as emphasised by the family report writer and avoid further upheaval and adjustment in their lives. The objective evidence is the children, and in particular X has settled, and his behaviour has markedly improved since his return to Town C, which has coincided with him ceasing virtually all prescribed medication and the non-prescribed supplements which the mother also administered to the children prior to their return to Australia. The husband has provided a familiar and stable home environment for the children as best as he can, whilst continuing to financially support the family. The engagement of au pairs as child carers to assist with the children's care is an inevitable necessity for a sole working parent.
In her proposed orders the wife did not address any ameliorating measures, which the court should impose, in the event it was found that she poses an unacceptable risk of harm to the children. The wife's proposed orders incorrectly assumed no such finding would be made. Despite professed remorse for her actions in administering psilocybin to X, the wife did not even propose injunctions restraining her from doing so in the future, not preventing her from administering nonprescription medications to the children.
To the contrary the husband proposed restraints, supervised time between the children and the wife and for that time to occur in Australia, as ameliorating measures.
It is regrettable the wife was unable to provide instructions to her counsel about her future plans if orders were made for the children to reside in Australia, both as to periods of time in Australia she would seek to spend with the children and frequency thereof. The wife's proposed orders dealt with the children spending time in Country B with her and not spending time with the children in Australia, supervised or otherwise.
The husband sought orders for the wife's time with the children to be supervised if the court found the wife posed an unacceptable risk of harm, which I have found. The proposal was for indefinite supervision, which he contended would ameliorate the unacceptable risk.
I am not satisfied an injunction restraining the wife from administering illicit substances to the children would suffice, if the children are permitted to relocate to Country B, particularly when taking into account the apparent ease with which the wife obtained the psilocybin gummies in Country B, her personal attitude to taking psilocybin and her inability to cope with X's behaviour whilst he was in Country B.
The only satisfactory suite of protective measures to ameliorate the unacceptable risk is to impose relevant injunctions, for the children to remain in the primary care of the husband in Australia and for the wife's time with the children to take place in Australia until they are of sufficient age, maturity and resilience to be able to self-protect and according to the husband's proposal, the wife's time should be supervised.
There are obvious difficulties associated with orders providing for indefinite or long term supervision and whether such orders are in children's best interests.
The imposition of a long-term or indefinite supervision arrangement is generally not appropriate as a long-term measure, although such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child's life (Lainhart and Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166 per Austin J at [36]). The risks are that supervision is an artificial environment and there is an obvious possibility of the children at some future time questioning the requirement for supervision, the potential for them to question their own safety, to challenge or resent their mother about the necessity for supervision, thus detrimentally affecting their relationship with their mother, the costs of supervision and whether such a situation is capable of supporting a meaningful relationship between children and a parent.
On the other hand, some authorities (Gorman & Huffman and Anor [2016] FamCAFC 174 and Keighly & Keighly [2023] FedCFamC1A 146) support the proposition an order for indefinite supervision, although generally undesirable, may be appropriate in some circumstances, where a court is confident the time will be in the best interests of the children. Every case must be decided on its own facts (Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123 at [67]).
In this case I do not intend to impose indefinite supervision on the wife's time with the children. I consider a specified period of supervised time, restraint on the wife about administration of illicit and non-prescribed substances, as proposed by the husband and for the children's time with their mother to take place in Town C, unless otherwise agreed, until they are significantly older, more mature and able to self-protect, together with placing the children on the watchlist and for the husband to have control of the children's passports, will ameliorate the identified unacceptable risks of harm.
I therefore intend to make orders for the wife to spend time with the children in Town C, upon her providing 28 days prior notice to the husband of her intended arrival, subject to protective measures as contemplated by order 7 (a ) - (f) of the husband's proposed orders, which will be the subject of injunctions. I do not intend to make an order as sought by proposed order 7(g) and 8 for two reasons. First, I am uncertain whether the wife is actually currently attending on a psychiatrist and secondly, I do not propose to potentially offend the principles enunciated in Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166.
I intend to make orders for initially supervised time between the wife and the children which after four visits to Australia will progress to unsupervised daytime and thereafter overnight time. That will provide an appropriate balance between ensuring the children are adequately protected from risk while promoting their relationship with their mother. I anticipate the four visits to Australia will encompass a couple of years at least, which will mean the children will be older and X, at least will be in his teen years and be in a position to be able to self-protect to some extent.
Because the wife failed to propose relevant orders, I have not been able to take into consideration her preferences for configuration of her time with the children. As to choice of supervisor and costs involved, I intend to adopt the father's proposals at order 5 (a) and (d) of his proposed orders as the wife did not make put forward any proposals about supervision.
After balancing the need to act protectively for the children having regard to both identified unacceptable risks, and to ensure they have the benefit of an ongoing and meaningful relationship with their mother, I consider the appropriate timeframe would be for the children to spend supervised time with their mother for up to a two week period , during school time, from the conclusion of school each day until 7.00 PM and on each of Saturday and Sunday from 10.00 AM until 5.00 PM. If the mother elects to visit Australia during the children's school term or summer holidays, her time should be from 10.00 AM to 5.00 PM each day for up to a two week period of the holidays.
After four such visits to Australia, the time should progress to unsupervised day time in the same configuration for a further two visits to Australia and thereafter to unsupervised overnight week about time during the school term, for up to four weeks on two occasions each year. If the wife elects to spend time with the children during the school holidays, the children shall spend 10 nights in the term holidays with the wife and during the long summer holidays, on a week about basis. I anticipate it will be a number of years for that time to eventuate, and all such time should be in Town C, until each child turns 16, unless otherwise agreed by both parents in writing.
I also propose to place both children on the watchlist until the age of 16 for each child, which I acknowledge will restrict Y's travel for a longer period than X's travel. Because of the age difference between the children, there is really no other practical solution. That age gives me sufficient confidence that if the children were to travel to Country B, they would have sufficient maturity and capacity to self-protect and contact the husband, if they considered they were placed at risk of harm or alternatively the wife was planning to overhold the children in Country B, at that age it is likely each would have a more defined social network in Town C and less likely to be amenable to any attempts for them to remain in Country B. I observe these orders will be made in a void of any evidence or submissions from the wife about her intentions to remain in Country B or return to Australia, or if I did place the children on the watchlist, as sought by the husband, or the duration of same.
The orders for time strike a balance between the need to act protectively for the children and their need to have a meaningful relationship with their mother in circumstances when she has probably elected to reman living in Country B and where I have found she currently poses an unacceptable risk to the children, absent protective measures.
I will also make orders for the children to have electronic time with the wife. The wife seeks that electronic time at any reasonable time, including as requested by the children, whereas the husband seeks specified times three times a week and otherwise as requested by the children. I consider it appropriate to nominate specified times so the children will have certainty about when they will speak to their mother. I will make orders nominating the times proposed by the husband, because the wife did not nominate any specific times. The husband will be obliged to make the children available for the electronics communication.
Additionally, the wife seeks to define the conduct of the electronic communication, as per paragraph 13 of her proposed orders. That is similar to the husband's proposal at paragraph 18 of the husband's proposed orders, except he proposes that apply to both parents during the children's time they spend with either parent. I will incorporate the husband's proposal to extend to electronic communication.
If the wife chooses to return to live to Australia and seeks alternate orders, she is at liberty to commence proceedings, subject to her satisfying the court of the matters prescribed under s65DAAA of the Act. Whether she does so, is a matter for her.

[143]

The balance sheet was agreed by both parties, except for the inclusion of the liabilities each asserted was owing to their families and or friends.
The husband contended $17,000 owing to his parents should be included as a liability in the balance sheet and the asserted liability of $64,388, as claimed by the wife, should be excluded. The wife contended both the husband's liability to his parents ($17,000) and her liability to family and friends ($64,388) should be excluded from the balance sheet.
In his trial affidavit at paragraphs 482 - 485 the husband deposes to his parents advancing him the following amounts:
- On 28 March 2024 the sum of $15,000 was advance by his mother for payment of legal fees and deposited into his ANZ Access Advantage account;
- On 7 and 10 February 2025, his parents lent him a further $60,000 to assist with legal fees;
- Since December 2023, his parents have lent him $92,000 (inclusive of the above amounts).
According to the husband the great majority of the funds advanced has been expended on legal fees, with the exception of the sum he seeks to include as a liability in the balance sheet. In his Financial Statement at Part K Item 53 the husband included as a liability $17,000 owing to his parents.
During cross examination the husband was not challenged about the $17,000 liability.
In her trial affidavit the wife at paragraph 269 deposes to a liability of $51,034 owing to her family and friends and at paragraph 322 also deposes to having relied on loans from family and friends of $51,034 (in AUD).
In her Financial Statement filed 21 March 2025 at Part K Item 50 the wife included as a liability $51,034 owing to her family members and friends, as ostensibly confirmed in letters dated 19 December 2024, 21 December 2024 and 22 December 2024. There was no explanation provided by the wife about the application of the asserted funds advanced or why the sum claimed as a liability had increased between the dates of swearing her affidavit and Financial Statement and the date of trial.
I will include in the asset pool the husband's liability to his parents of $17,000 because he has provided details of the application of the funds[32]. In his trial affidavit, the husband deposes to borrowing the funds on 4 January 2024 and applying them in payment of two credit cards, $7,163.76 to Bank Z and $9,803 to ANZ Frequent Flyer Black card, which he deposes were utilised prior to separation to fund family travel to Country B.
I will exclude the wife's claimed liability from the asset pool because it was ostensibly incurred subsequent to separation, it is not possible to accurately discern in the absence of corroborating documents to what extent the funds advanced were used to pay legal fees and other unspecified expenses and there was no explanation for the increased amount claimed by her as at the date of trial.
I therefore conclude the existing assets, liabilities and superannuation interests of the parties is as follows:

[148]

The husband is 55 years of age and maintains good health although he has been diagnosed with ADHD. His income is in the vicinity of $200,000 per annum and he has superannuation entitlements of around $400,000.
The husband will have the full-time care of the children and will be entirely responsible for their financial support, with likely little, if any financial or non-financial assistance from the wife. It is unclear whether the wife intends to return to Town C to spend time with the children or remain in Country B with her partner, or indeed whether, if she remains living in Country B, she intends to travel to Australia to spend time with the children.
The husband acknowledges he has a greater income and future earning capacity than the wife, but that is to be weighed and offset against his obligations to provide accommodation for the family and to support the children whilst they remain living with him. He submits he should receive a 5% adjustment on account of s 75(2) factors.
The wife is aged 44 years and contends she has significant health issues which impact on her ability to work. Her income is $346.00 per week, which she derives from a disability pension from the Region AA disability support program. Her health issues include mixed mood and anxiety, chronic insomnia, ADHD and other medical issues. She has undergone three major operations to date, and her next operation is scheduled to occur in August 2025. She asserts she has not been employed in any meaningful capacity for the past 11 years.
Further, the wife contends her standard of living is a factor to be considered. As a result of her health issues and inability to gain employment her standard of living is far lower than when the parties were in a relationship. She has managed to rent at a reduced rate through family connections, but it is unlikely she will ever be in a position to purchase a home if she does not receive a significant adjustment in her favour from the sale proceeds of the former family home. The wife's future accommodation needs are exacerbated by her various health conditions and in particular her cancer diagnosis.
The wife submits even if her health permitted her to obtain future employment, it is likely she would require a period of retraining prior to entering the workforce. According to the wife, there is a significant income disparity between the parties of approximately $181,592 per annum.
The wife submit she is unlikely to recover financially from separation and the proceedings, taking into consideration her obligation to pay legal costs, whereas the husband's income will enable him to do so. Because the asset pool is modest, the wife's future needs are more significant than contributions, when determining an appropriate adjustment. She submits she should receive a 20% adjustment on account of s 75(2) factors and that she requires access to available assets, namely the equity in the family home, as opposed to a superannuation split which would delay her entitlements for many years.
I accept the wife has significant health issues which impact on her current and future ability to obtain employment and to support herself in a manner commensurate with the standard of living previously enjoyed by the family and she would be assisted by access to the equity in the family home. However, I accept the submission off the husband that he will have the full-time care of the two children and will most likely be solely responsible for the financial impost of their care, which includes providing a home for the children.
I consider there should not be an adjustment of s75(2) factors for either party, as the wife's future needs are offset by the husband's future obligations to care for the children, both financially and non-financially.

[159]

In Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at [161], the Full Court referred to the applicable principles:
- The word "adequately" is not to be determined according to any fixed or absolute standard.
- The idea that "adequate" means a subsistence level has been firmly rejected.
- Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.
- In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
- It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
- However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
Section 74 of the Act empowers the Court to make orders as it considers proper for the provision of maintenance of a party to a marriage.
I will firstly address the threshold issue, whether the wife is unable to support herself adequately.
As to the wife's capacity to support herself, the wife relies on her Financial Statement filed 21 March 2025, wherein she deposes to a shortfall between her income and expenses of $246 per week. She receives a net weekly income of $346 derived from her Country B disability pension. There was no evidence adduced as to whether a disability pension is income tested and would be disregarded pursuant to s 75(3) of the Act. Her weekly fixed expenses are $7.00 a week, and the expenses claimed at part N amount to $592 per week. A closer examination of the expenses claimed at Part N, absent supporting documentation, seem to be somewhat exaggerated such as telephone expenses of $92 per week and chemist /pharmaceutical expenses of $119 per week, although generally speaking the expenses claimed were not overly excessive.
In addition to those expenses, the wife deposes that she is likely to incur, in the future, rent of $560 per week and motor vehicle expenses of $108.00 per week which equates to a further $668 per week.[33] The quantum sought by her also includes an additional $334 per week, which she has calculated on the basis of her estimated costs for care of the children, if they live with her in Country B. As referred to above the children will not be relocating to Country B to live with the wife and will remain living in Town C with their father, so those estimated costs are not relevant.
Whilst I accept the wife's financial position as set out in her Financial Statement, it is unclear what expenses, if any would be shared by her partner Mr H, if they commence cohabitation, as is seemingly intended. There was no evidence to substantiate the future costs claimed by the wife, except her bare assertions as to rent and motor vehicle costs.
Primarily relying on the wife's Financial Statement, which demonstrates the wife's current expenses exceed her current income and absent any specific challenge to those expenses, I am satisfied the wife is currently unable to support herself adequately from her own resources and has therefore met the required threshold. However, the quantum sought by her cannot possibly be justified because the children will not reside with her and it is unknown to what extent she will be sharing joint expenses with Mr H and how that would impact on her overall claimed expenditure. The wife did not propose a lesser amount for spousal maintenance if the children remained living in Town C. The quantum sought was indicative of a simplistic approach, namely a deduction of the husband's expenses in his Financial Statement which related to the children and therefore, if the children were to live with the wife, he would not have to incur. Such approach ignores the future child support obligations which would come into play if the children were to live in Country B, which the wife was unable to quantify, and the costs of travel between Country B and Australia, which the wife also seeks the husband pay, pursuant to her proposed order [10].
Turning now to consider the husband's capacity to pay, noting I have referred to relevant s 75(2) factors above in my discussion of future needs adjustment.
As to his capacity to pay, the husband relied on his Financial Statement filed 5 March 2025, which discloses a modest weekly surplus of income over expenditure of $21. At Part B of the document the husband deposes to a gross income of $4002 per week and expenses of $3981.19 per week. His fixed expenditure detailed at Part G amounts to $1,964.00 per week and his total expenditure detailed at Part N, for himself and the children is $2,017.00 per week.
Counsel for the wife did not successfully challenge the amounts claimed by the husband at Part N, and I accept the husband's evidence in that regard.
In addition to his current expenses, it is likely the husband will need to borrow to pay the wife her cash payment entitlement, which may well result in increased weekly outgoings. If he is unable to do so, then he will be faced with the prospect of rent for suitable accommodation to house himself and the children.
On any view of the husband's financial situation, he has no capacity to meet any spousal maintenance payments to the wife, let alone weekly payments or a lump sum as contemplated by her. Even if the family home were to be sold, the total proceeds available would not go anywhere near the sum proposed by the wife. To suggest the family home should be sold to pay lump sum spousal maintenance to the wife, at the expense of accommodating the children, is untenable and unrealistic.
I do not propose to make any order for spousal maintenance for the wife and her application will be dismissed.

Novakova & Novakova [2025] FedCFamC1F 608 (6 October 2025)

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