Dalgleish & Dalgleish [2020] FCCA 1833 (7 July 2020)

Last Updated: 23 July 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

Property Orders

(1) The parties do all acts and things necessary to cause the release of the following sums by way of by way of interim property distribution:

(a) $450,000 to the Respondent Wife; and

(b) $80,000 to the Applicant Husband.

(2) The Applicant Husband pay the Respondent Wife by way of spousal maintenance a lump sum of $15,600. This sum is to be paid out of the capital sum currently held in the controlled monies account and is in addition to the interim property distribution referred to in Order 1 herein.

(3) Within 7 days of the date of these Orders, being by 14 July 2020, the parties are to do all acts and things to arrange for the balance of funds currently held in the controlled monies account to be invested as agreed in writing between the parties.

(4) Within 7 days of the date of these Orders, being by 14 July 2020, parties are to notify the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au as to what agreement has been reached regarding the investment of the remainder of the proceeds of sale.

Parenting Orders

(5) For a period of 3 months following the date of these Orders, being until 7 October 2020, a preliminary “re-orientation period” is to occur. The Applicant Father is to spend time with the children X (born: 2007) and Y (born: 2009) (“the children”) and an agreed third party on no less than one occasion per fortnight, at a time and place to be agreed in writing between the parties

(6) Absent any other agreement in writing between the parties, the time with arrangements outlined in Order 5 are to occur on a minimum of 6 occasions during the “re-orientation period”.

(7) Thereafter, time with arrangements are to be as follows:

(a) Between 7 October 2020 and 7 December 2020, the Applicant Father spend time with the children on alternate weekends for a period of up to four hours, on dates and times to be arranged and agreed between the parties.

(b) Between 7 December 2021 and 7 March 2021, the Applicant Father spend time with the children each alternate weekend from 10:00am until 7:00pm on Saturday.

(c) Between 7 March 2021 and 7 June 2021, the Applicant Father spend time with the children each alternate weekend from 10:00am Saturday until 12:00pm on Sunday.

General Orders

(8) Within 14 days of the date of these Orders, being by 21 July 2020, the parties are to advise the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au whether they will attend arbitration and, if so, provide a timeline for when this will occur. Absent agreement to attend arbitration, the matter will remain listed for Final Hearing on a date and time to be advised by the Court.

NOTATION:

• (A) It is requested that, prior to the recommencement of the Applicant Father’s time with the children, the Independent Children’s Lawyer meet with the children and explain the Court’s reasons, decisions and Orders, and inform the children that the Court considers the views they expressed in the Family Report to be very important;
• (B) It is further requested that the Independent Children’s Lawyer meet with the children at the end of the 3 month re-orientation period to ascertain any relevant views. These views are to be conveyed to the parents. Subject to the assessment of the Independent Children’s Lawyer at that time, the Independent Children’s Lawyer may request that the matter return to Court for further directions.

IT IS NOTED that publication of this judgment under the pseudonym is Dalgleish & Dalgleish approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

CAC 995 of 2019

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. Some procedural, and other, history is important to give context to the interim relief sought by the parties.
2. The matter commenced with the Father filing an Initiating Application on 30^th May 2019, in which he sought parenting Orders in relation to his daughters, X, who is 13, and Y, who is 11 (“the children” or “the girls”).^[1] The Orders sought were, shall we say, very detailed. He also sought that an expert be appointed pursuant to Division 15.2 of this Court’s Rules.
3. In short, on a final basis, the Father sought a shared care, week-about arrangement with the Mother for the care of the children.
4. The Father’s Notice of Risk recounted some concerning and, in certain respects, “high spirited” interactions between the children and their Father. The Father denied then, and denies now, there is any risk of the children in his care or spending time with him. The incidents referred to by the Father are set out in some detail, and carefully considered, in the quite searching and thorough (but still untested) Family Report of Ms B, which became Exhibit A.
5. The Mother’s Response, filed 1^st August 2019, sought quite generalised parenting Orders as well as Orders in relation to property (80/20% split in the Wife’s favour of the non-superannuation pool; 60/40% split in the Wife’s favour in relation to the superannuation pool). Subject to some financial issues, the Mother agreed with the appointment of an expert as proposed by the Father regarding parenting matters. The Mother also sought an Order for spousal maintenance of $1200 per week. The Mother deposed that she is the primary carer of the children.
6. In the Mother’s material, stated here in the most general of terms, she contended that the children were scared of their Father and did not wish to spend time with him.
7. The delay between the filing of the Father’s Application in late May 2019 and the Mother’s filing of a Response in early August, unfortunately, was not explained.
8. On 19^th August 2019, Orders were made by consent that provided, among other things, that: (a) the children spend time with the Father; (b) an interim distribution of funds to both parties in the sum of $10,000; and (c) for the Father to file material in Reply regarding the Mother’s property Orders sought.
9. The Father filed his Reply and Financial Statement on 4^th October 2019. Among other things, he sought Orders for the division of the parties’ property (60/40% in the Wife’s favour) and a superannuation split to the Wife (a base amount of $300,000).^[2]
10. On 5^th November 2019, Orders were made for the appointment of an Independent Children’s Lawyer (“ICL”), and that the matter be listed for final hearing on dates to be advised.
11. By Orders made on 9^th December 2019, the matter was listed for final hearing for 2 days, commencing on 30^th April 2020. Trial directions were also made. Terms of reference for the agreed expert were attached to these Orders.
12. The expert report of Ms B (noted above) was released to the parties on 17^th January 2020.
13. At the directions hearing on 2^nd April 2020, which was conducted by telephone, as a result of the pandemic, at the joint request of the parties, the trial dates were vacated. Orders were made for the matter to be re-listed for a 3 day hearing on dates to be advised.
14. In the course of the directions hearing on 2^nd April, the parties sought the indulgence of the Court and indicated the “need” for the Court to address some interim issues – parenting matters on the Father’s side, financial matters on the Mother’s – would be required with some urgency. It was suggested that perhaps one of the dates of the previously listed but now vacated trial could be used in this regard.
15. I pause here to note what should be immediately obvious, by (a) vacating the final hearing, (b) seeking an interim hearing, and (c) that the matter be listed for a final hearing on dates to be advised but likely to be quite some time into the future, the parties will thereby incur costs for at least two hearings rather than one. I do not, for a moment, imply any mendacious or avaricious motives (or worse) by anyone. It was primarily a function of circumstances. However, having already spent, or incurred, costs of approximately $100,000 each, the scenario just outlined somewhat begs the questions as to how far the parties will ultimately go in (i) depleting the funds from the proceeds of sale of the former marital residence, and (ii) in consequence, continuing to expend all other resources (perhaps primarily psychological and emotional) for themselves and the children while the contest plays out. In short, will there be any resources left to fight over after multiple hearings, especially if there are any appeals along the way? A sad, confronting, but true question.
16. Should it be relevant, it necessarily follows from what I have just said that, in all likelihood, there will need to be two separate judgments, which will (a) inevitably lead to some extra delays simply because of the extremely over-stretched resources of the Court in being able to attend to judgments at the same time as continuing to attend to all of the usual and unusual hearings (final and interim), and (b) potentially lead to an increased likelihood of appeals, simply because there is a prospect of appeal in almost any judgment (albeit they are all discretionary judgments in family law). And simply because there will now be two judgments at least, it must thereby increase the risk of any appeal more so than if there was just one judgment. Any appeal of course will ineluctably add significantly to (a) the delay in the matter being finalised, and (b) the costs ultimately borne by the parties. Again, with no criticism intended, only the lawyers ultimately “win” – a fact of life in ongoing litigation in any context. Indeed, because there will, in all likelihood, be two judgments, although the parties presumably will read them, the lawyers will read them, and charge the parties for doing so, and the procedural/tactical advice that will follow from the consideration of, for example, these reasons. Thus, there is the double cost – of preparation, then of the result, and whatever happens thereafter. As a consequence, the property pools diminishes with every legal entanglement.
17. Moreover, given that both parties seek a partial or other distribution of the funds held in trust, it also follows that for example, any funds distributed to the Wife will, presumably, necessarily be reduced, in her hands, by virtue of the debt she owes to her lawyers, now in excess of $100,000 or thereabouts. In this regard, I note that there is a first instance decision in the Family Court in which the Court did not take into account outstanding legal fees of about $200,000, in circumstances where the Wife was to receive cash of $233,550. One of the issues the Court considered was the Wife’s ability to support herself adequately. On appeal, the Full Court allowed appeals from both parties but only made passing reference to the issue of spousal maintenance.^[3]
18. On 7^th April 2020, the Court made Orders in Chambers fixing the matter for interim hearing on 30^th April 2020. Orders were also made for the filing of an Outline of Submission of no more than 2 pages regarding the two issues to be considered: (a) the Father’s time with the children, and (b) the Mother’s spousal maintenance Application.
19. Those submissions were duly filed. The Father’s submissions were just over 2 pages. They dealt with the two issues noted in the Orders of 7^th April.
20. The Mother’s submissions ran to just on 7 pages. Apart from brief mention of the Mother opposing any further parenting Orders pending the completion of family therapy, they addressed only the issue of spousal maintenance. When this very significant over-reach and non-compliance regarding submissions was raised with the Mother’s Senior Counsel, he said that the options basically were either to do the submissions as they had been filed, or he would have to make the same submissions orally. Respectfully, this was an inappropriate, almost defiant and presumptuous, response. It would not have been made in any other Court. It treated the Court’s Orders as simply suggestions or guidelines. They were not. Even more so when every accommodation was given to the parties in these difficult pandemic-affected times to (a) list interim hearings, and (b) appear by video-link, brevity and compliance are essential. Otherwise, there is one set of Orders that applies to and is complied with by one party, while the other party makes their own arrangements to suit themselves. As such, it is procedurally unfair to the other party who has complied with the Court’s Orders.
21. There were any number of ways of dealing with the matters which Senior Counsel wished to canvass, none of which required such apparently casual indifference to (or defiance of) the Court’s Orders. Not the least “best practice course” would have been (a) to approach the Court prior to the hearing to seek relevant leave (as the Father did in his submissions), or (b) simply to footnote the references, including sections of the Act, which were set out at length in the section titled “relevant principle.” Three out of the four cases referred to in the submissions are all standard. There could even have been a jointly prepared chronology. None of these basic procedural, and courteous, steps occurred. What occurred was all unnecessary. It would never have occurred, or tolerated, in any superior Court.
22. The final procedural matter to note, which I raised during the hearing, was the alarming lack of compliance by the lawyers with the Court’s Practice Direction that puts a limit on Affidavits and their annexures.^[4] I noted that in this Registry it was increasingly common, especially for the larger family law firms, to file prodigiously long Affidavits for interim proceedings. Such a practice was/is in clear breach of the Practice Direction noted above. By way of example, if one took account of an Affidavit that was 30 pages over the Practice Direction limit, and if this was replicated in, for example, 20 matters during a typical duty week, this alone would require reading an additional 600 pages. For interim matters in such a busy Court, this is untenable. It also perpetuates an injustice on the Court and other litigants who similarly seek Court assistance urgently and the further and ongoing strain on the scarce public resources of the Court.^[5] The scarce resources of the Court, especially “time”, should never be presumed; still less should they ever be abused.
23. As already mentioned, the fixing of this interim hearing was, as is often the case, quite an indulgence and a concession to the parties when so many other matters are seeking the Court’s assistance. In such circumstances, the treatment of the Court in the circumstances bordered on an affront. Indeed, the precedent of the conduct here was so poor, uncontrite, and presumptuous, were it to be replicated, there is some prospect that, in accordance with the Practice Direction earlier referred to, any future hearing (in this or any other matter) could be immediately vacated because of (a) the defiance of Court Orders, (b) the lack of compliance with Practice Direction(s), and (c) such matters could lead to personal costs Orders. If anything further be needed to highlight the importance of Court Orders in the context of trial or hearing management, one need only consider the remarks of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, where, at [56] and [57], the Court said (emphasis added):^[6]
    • [56] ... Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
    • [57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs...
24. Moreover, in the current matter, based on the Annexures to the Affidavits, the parties are essentially unconstrained in their alarming, and alarmingly long, SMS (and other) messages to each other. There is more than an indication that neither of them can contain nor otherwise restrain detailed, voluble expression of their grief, frustration, and much else besides, towards the other party. Such feelings, and all else, are ventilated freely. The consequence? A cycle of (a) accusation, response, reply and more, (b) the forwarding of these messages to the lawyers, who in turn print them out and attach them to Affidavits, and (c) the parties get charged for their inability to control their pent up hostilities and other emotions. The lawyers “win” financially while the resolution of the issues in dispute for the parties remains elusive. Indeed, the Court has been told that the parties have spent (in the Husband’s case), or incurred debt (in the Wife’s case), of $100,000 thus far. Presumably this disturbing figure includes fees incurred for an unsuccessful, private mediation.
25. While the parents continue to fight, bicker, vent a range of deeply felt emotions, and otherwise remain deeply embroiled in very bitter but inexorably costly contest, the children too remain caught up in the same maelstrom. Some might ponder [rhetorically] why the children are “upset” in these circumstances. Respectfully, methinks that at least part of the answer (as in a great many parenting matters) does not require mystical revelation. For all the counselling and professional inquiry, at least part of the answer must surely be that the parents should sacrifice something of their contest in order to resolve matters for the sake of the children. It would seem, according to the Family Report, that neither parent will back down. There may be good reasons for their respective positions. At the moment, metaphorically it seems that it must be a “fight to the death”, whatever the cost – financial, psychological, emotional and all else, for the parents and seemingly for the children too. Tragedy writ large; the better angels of the parents, thus far, have been vanquished, it would seem. As noted below from the Report, some of the insights of the children are wonderful and wonderfully telling about their insight. But not even these plaintive pleas from the children is enough to bring their parents to see the destructive dynamic that is in play here and therefore do whatever it takes to resolve matters. It almost seems that the children themselves are so deeply enmeshed in the proceedings that it will be very difficult to extricate them from the battle, let alone work out some sort of salve that will bind and heal their wounds.

Orders sought on behalf of the Applicant Father

26. The Applicant Father filed a Minute of Interim Orders sought on 29^th April 2020, which were as follows:
    • MINUTE OF INTERIM ORDERS SOUGHT BY THE APPLICANT FATHER
    • 1. The parties have equal shared parental responsibility for X (born in 2007) and Y (born in 2009) (“the children”).
    • 2. The father spend time with and communicate with the children as follows:
      • 2.1. For four hours on Saturday 2 May 2020, as agreed and failing agreement, from 10.00am to 2.00pm and every second week thereafter; and
      • 2.2. From 10.00am to 7.00pm on Saturday 13 June 2020 and every second week
      • thereafter for a period of three months; and
      • 2.3. Thereafter, the weekend time increase 10.00am Saturday to 12 midday Sunday every second week; and
      • 2.4. Such further or other times as is agreed between the parties.
      • 2.5. The father be at liberty to telephone or otherwise communicate with the children using a digital platform (including Skype or FaceTime) on two occasions each week as agreed and failing agreement, each Thursday at 6.00pm and Sunday at 5.30pm and the mother is required to make the children available to receive those communications from the father and is to facilitate the children communicating with the father at that time.
      • 2.6. For the purposes of Order 2.5, the mother will ensure the children are afforded privacy during the communications with the father (including the mother shall absent the room where the children are located at the time of the communications and/or otherwise refrain from listening to those communications).
    • 3. The matter otherwise be adjourned for review and further directions and/or interim hearing on a date not before 1 October 2020.
    • 4. The Independent Children’s Lawyer shall provide the Report of Ms B to the therapist upon whom the parties are attending for family therapy (presently Ms C) or such other therapist engaged by the parties for family therapy (“the therapist”).
    • 5. For the purposes of any family therapy occurring while social distancing limitations remain in place, the mother do all things necessary to ensure that the children are able to participate in family therapy sessions with the therapist, including sessions involving the father, with privacy and, unless expressly directed by the therapist, the mother shall not be in the same room with the children while they engage in that therapy.
    • Financial matters
    • 6. Upon the making of orders, the parties do all acts and things necessary to cause the release of the following sums from the sale proceeds of the former matrimonial home held in a Bank D Money Account:
      • 6.1. $300,000 to the wife; and
      • 6.2. $100,000 to the husband.
    • 7. The wife’s application for interim spousal maintenance be dismissed.
    • 8. The wife pay the husband’s costs.

Orders sought by the Respondent Mother

27. The Respondent Wife provided a Minute of Order to the Court via email on 29^th April 2020, which was formally filed [out of time] on 5^th May 2020. The Orders Sought were as follows:
    • INTERIM MINUTE OF ORDERS SOUGHT BY THE RESPONDENT WIFE
    • UNTIL FURTHER ORDER:
    • 1. That pursuant to sections 79 and 80 of the Family Law Act 1975, within 24 hours from the making of these Orders, the parties forthwith do all things to cause the amount of $800,000 to be paid to the Wife, with the balance of the funds to be retained in the controlled monies account with FGD until further order.
    • 2. That pending further order, the Wife provide to the Husband 28 days’ notice in writing of any intention to encumber or deal with the real property she proposes to purchase with the funds made available by way of interim property settlement pursuant to Order 1.
    • 3. That the Husband pay to the Wife by way of spousal maintenance the sum of:
      • a. $400 per week, on the basis that the Wife has the benefit of the funds received pursuant to order 1; or
      • b. $950 per week, on the basis that the Wife does not have the benefit of the funds received pursuant to Order 1,
    • with the first payment to be made within 7 days and thereafter each week into a bank account nominated by the wife on the making of this order.
    • 4. That the proceedings be adjourned for mention on a date not earlier than 1 October 2020 to allow the parties and the children to complete the current process of family therapy with Ms K.
    • 5. The Husband pay the wife’s costs and incidental to this interim application.

Summary of the Father’s Evidence

28. Because of (a) the volume of material, and (b) the inability of the Court, in interim proceedings, relevantly to make findings absent telling, independent evidence, it is sufficient for current purposes to note summarily the following matters. I will do the same below in relation to the Wife’s burgeoning material.
29. Thus far, the Father has filed three Affidavits – on 30^th May 2019 (32 pages, including annexures), 4^th October 2019 (85 pages, including annexures), and 28^th April 2020 (49 pages, including annexures). I will not traverse each of these Affidavits, primarily because they tell, with various updates, the sorry saga of (a) the Father’s fractured and fractious relationship with the Mother, (b) his fractured and fractious relationship with his daughters, (c) his generally unsuccessful attempts, thus far, to bridge the large gaps in all of these relationships, and (d) what he has done to provide financial assistance and support for the Respondent Wife and the children.
30. At the outset, it needs to be recorded that it is quite clear from the material filed by both parents, and what is in the Family Report, that the children are acutely aware of all of the “adult issues” in contest between their parents, including the financial imbroglio. This should not have occurred. Even in SMS messages from the children to the Father, and as recorded in the Family Report, the girls quite frequently berate the Father for [allegedly] not paying, or continuing to pay, for example, their school fees. Leaving aside the inaccuracy of many of their claims, as an observation only at this stage, given that the children have not been spending time with their Father for quite some time, the only probably source of their [mis]information is from their Mother. We will see what actually comes out at any future trial and any findings that might ultimately be made once evidence is tested.
31. For current purposes, it is sufficient if I go through the Father’s October 2019 Affidavit summarily to provide an overview of, and some context for, the matters in issue. Then I will consider, again very briefly, the updating material, such as is immediately relevant, from his most recent Affidavit, notwithstanding the usual, regular overlap between successive Affidavits. Parties of course pay for material that replicates what was set out in earlier Affidavits; and the Court (and other litigants) “pays” too in the sense of the extra time and general resources consumed to check that recent material does (or does not) replicate what was set out in previously filed material!
32. The Father’s October 2019 Affidavit, in pars.1 – 25, primarily responds to various contentions by the Mother regarding parenting set out in her Affidavit filed 1^st August 2019. The Mother’s Affidavit was 40 pages long. The Father refers to it (par.1) as “lengthy.” Curiously, his responding Affidavit is 85 pages in length: an interesting comparison on what is and what is not “lengthy”. Again leaving to one side compliance with (or lack of it) the Court’s Practice Direction, the words “pot”, “kettle” and “black” come reasonably quickly to mind.
33. The Father confirmed that he had not spent “any real time” with the children since consent Orders were made on 19^th August 2019. He outlined various attempts to spend time with the girls, and his occasional but invariably limited success in doing so. He outlined various, sometimes curious, engagements with the girls (sometimes too with the Mother), including some negotiations whereby one or other of the girls demand that certain things be done before they will consider spending time with the Father. These include shopping for a pet cage, school shoes, toys and getting a haircut. Other, later demands included (on the Father’s evidence) new phones and ultimately new SIM cards.
34. There was later reference to the Father’s understandable concern about the mental well-being of the girls, Y in particular, who had been self-harming, and worse.
35. The Father also expressed concern about the degree and frequency of the girls’ absences from school. Correspondence between the parties’ lawyers regarding these matters was annexed to this Affidavit, as well as some SMS messages with the girls.
36. In relation to financial matters, the Father noted (pars.24 – 48) various itemised payments, receipts and the like over a significant period of time which, he said, showed that he had supported the Mother and the children in a wide variety of ways, including payment of school fees, mortgage, child support, and credit card debt. He contended that the Mother was (and is) “not careful with money”, and has not endeavoured to find employment since she took a redundancy from Employer G in mid-2012. This latter aspect is canvassed at a little length in pars.49 – 55.
37. At pars.56 – 64, the Father refuted the Mother’s claims of financial abuse during and after the marriage, as well as allegations of sexual assault.
38. At pars.65 – 102, the Father returned to a range of ongoing issues in relation to the children, notably refuting various further contentions of the Mother regarding him, for example, allegedly hitting the children. Correspondence between the lawyers was attached of course, plus some SMS messages between the parents and the children (Annexures F – H). Annexure F is an account by the Mother of the alleged sexual assault by the Father, which he received from his sister-in-law.
39. Annexure A is a copy of a letter from Y’s General Practitioner (Dr E) (“GP”), dated 26^th August 2019, which refers to the child’s self-harming and experiencing suicidal thoughts. According to the GP, Y “is in a very fragile state.”
40. Annexures C and E are copies of various financial records that evidence, the Father says, his financial support of the Mother and the children.
41. The financial support provided by the Father to the Mother and the children is supplemented by the material in his 29^th April 2020 Affidavit. In particular, Annexure F to that Affidavit provides a summary of funds provided to the Mother for the previous 22 months. The Husband deposed (par.57) that this total amounted to $295,000, which averaged out to more than $3,000 per week.
42. The Father said (pars.58 – 70) that he:
    1. earns around $2,400 per week;
    2. pays assessed child support of $681 per week;
    100. pays school fees of around $400 per week; and
    4. pays rent for his current residence of $550 per week, plus some [unspecified] expenses related to “being employed”. This last expression was not explained or particularised.
43. The Father further deposed in the same place that:
    1. based on the Mother’s own material she has had access to $80,000 from the proceeds of sale of the former marital residence;
    2. he has paid more than $40,000 in cash and child support, which sum does not include a further $20,000 in school fees paid for by the Father;
    100. the Mother has invested around $900,000 (the Father says) in a poorly run and remunerated account, which provides an interest rate of 0.15%. He said that his regular savings account earns interest at 1.7% on amounts over $500,000. He also said that in late 2018, he advised the Mother to invest the proceeds of sale in Bank F, at a rate of 3.1%. Had this occurred, he said that the interest return would have been nearly $600 per week;
    4. the Mother had still not (as of late April 2020) sought any Commonwealth benefits, which include, he said, $20,000 held by Centrelink in family tax benefit for the Mother.
44. At pars.2 – 56 he set out his latest information and contentions regarding parenting matters. These included providing a copy (Annexure A) of a letter from Y’s psychologist, dated 19^th August 2019 (why the delay in providing it was not explained). Among other things, the Father expressed concern and frustration at trying to engage with the Mother, for example, to arrange a psychologist for the girls in late 2018 and early 2019. This naturally led to correspondence between the lawyers. He said that the Mother regularly and consistently does not inform him of any treatment received by, or arranged for, the girls.
45. The Father said that Y’s self-harming seemed to coincide with the Mother restricting his time with the girls. He said that information from health professionals indicated that her self-harming escalated significantly in June, July and August 2019.
46. In the paragraphs mentioned, the Father set out quite a number of extended exchanges between the parties, which I need not traverse. They are all of a piece with my earlier descriptions regarding the significant problems between the parents. How and why they have not sought professional assistance, other than some counselling towards the end of the relationship, is unclear and troubling. So much was also recorded by the ICL, noted below.
47. The Father set out the correspondence between the parties upon the release of the Family Report. To say that it resolved nothing was/is self-evident. There continued to be reasonably clear indications that the children were being involved directly in the “adult issues”. This was indicated in things like the copy of X’s SMS message to her Father dated 11^th December 2019 (Annexure C to his latest Affidavit). Further matters involving the children were set out in correspondence between the lawyers that are at Annexure D of the same Affidavit.
48. A matter of particular concern to the Father (pars.31 & 48), quite reasonably it seems to me, is a report by the Family Consultant, who wrote to the parties’ lawyers on 25^th February 2020 to confirm that she had been contacted by the Principal at the children’s school to express concern about their teachers feeling harassed by the Mother. It also seemed to the teachers that X had likely read the Family Report and was speaking about matters contained in it with her social group, which, unsurprisingly, was causing “some problems.”
49. Understandably too is the Father’s concern (par.49) about the girls’ frequent and lengthy absences from school. On the Father’s account, he says that from separation in June 2018, X’s records show more than 160 absences over more than 300 plus school days. He said that the same is basically true of Y and her absences.
50. The Father said that on the few occasions he has seen the girls, usually separately, the time has gone very well, even if there has been initial hesitation, including a time of ice skating with Y, shopping with X, and an occasion in February with both girls at a festival. He said that these interactions/occasions went well after what might be described as a bit of a “slow start.”

Summary of the Mother’s Evidence

51. Like the Father’s evidence, the outline here is rather summarily stated. It is taken from the Mother’s Affidavits filed 1^st August 2019 and 28^th April 2020.
52. In her first Affidavit, the Mother outlined (pars.10 – 42) what she described as the joint assets of the parties, as well as the various contributions for particular periods. At the conclusion of this section (par.42), contrary to the Father’s account, the Mother said that she now pays for the majority of costs in relation to the girls’ care because (she said) the Father refuses to pay much beyond his child support payments. She contended that he did not pay for things including the children’s medical appointments, haircuts, school shoes and bags, school camps, swimming lessons, and school holiday programs. It was not immediately apparent how the Mother paid for all these things given the financial circumstances she outlined.
53. At pars.43 – 53, the Mother set out what she described, in my view somewhat curiously, as “the Respondent’s and my financial needs.” The main focus of this section was upon the Mother’s need/wish to purchase a four bedroom residence that would house her and the girls, as well as her Mother who stayed with the family regularly prior to separation. Her “needs” also included funds to cover her legal fees, which she detailed, including the arrangement she had now made with her lawyers in relation to them.
54. Paragraphs 54 – 63 (including a significant number of sub-paragraphs, e.g. par.59(a) – (l); par.63(a) – (l)) outline the parenting arrangements during the relationship and after separation. I do not suggest that there is anything untoward about it however, in contrast to the Father’s material which usually annexed copies of relevant correspondence, the Mother simply extracted what appeared to be excerpts of communications. I will not canvass the difficulties there recounted.
55. Two specific, concerning incidents are then detailed by the Mother – Easter, 19 – 21^st April 2019, and on 2^nd May 2019 (pars.64 – 70). For current purposes, I need not go into detail of the competing contentions here. The same matters are set out also in the Family Report.
56. Paragraphs 71 – 80 provide the Mother’s account of what she described as the attempts of the girls to spend time with the Father, some aspects of Y’s behaviour, and the children’s consultations with the GP and psychologists.
57. Paragraphs 81 – 90 (again with a number of sub-paragraphs therein) describe what the Mother says was the Father’s abusive behaviour towards he and the children. Paragraph 90(a) – (g) described what the Mother said took place when, on three occasions, she asked the Father to hypnotise her to help her sleep. She said that on the first two occasions the Father sexually assaulted her. On the third occasion, she said that he attempted to assault her in the same way again but failed.
58. Without challenging the Mother’s harrowing account (which, as earlier recorded, the Father strongly denies), a question or two immediately arises, particularly, as the Mother averred, all events took place shortly before separation. Thus, if someone was sexually assaulted on one occasion in particular circumstances (being hypnotised and therefore necessarily more vulnerable), why would someone seek to replicate those circumstances (being hypnotised) again? And if the same thing had happened twice, why would someone initiate a third occasion in the same circumstances? Just questions, but potentially significant ones.^[7]
59. Paragraphs 91 – 96 relate to issues regarding obtaining a Family Report, and further responses to the Father’s Affidavit. I need not treat these matters here, especially regarding the Family Report because such matters have now been superseded by the Report having been completed and released.
60. The Mother’s Affidavit, filed 27^th April 2020, canvassed the following matters (again, briefly stated).
61. Paragraphs 7 – 32 deal with financial matters. A significant number of the matters raised here were detailed in the Mother’s August 2019 Affidavit. I need to re-state the earlier comments about parties paying lawyers for material that has been previously filed and replicated in later Affidavit(s). I need only to note things like (a) the Father’s significant salary, (b) the failed mediation in March 2019, (c) the Mother’s contributions before and during the relationship, (d) the accessing of funds from the proceeds of sale of the former marital residence (which the Mother contends has always been conditional on the Father receiving the same amount, usually either $10,000 or $20,000), (e) the very significant amounts of legal fees incurred by both parties, (f) the Mother’s previous work experience in the Employer G, and (g) her contributions post separation. She also recounted what she deposed to be her “ongoing financial needs”, which include the children needing to obtain braces. There was no mention or consideration of the Father paying the children’s medical/health care benefits. Nor was there any account of whether the children’s braces may be covered (the detail on this subject was quite lacking in precision – which child, or both children, was not evident from the quote from the orthodontist), either in full or in part, by the health care funding provided by the Father. Such omission might be considered by some to be a tad curious given the doubtless well-paid attention given to the material by the lawyers in the drafting of affidavits.
62. Paragraphs 33 – 48 outline what she says are current and ongoing parenting issues. Among other things, the Mother confirmed that there were a range of issues – regrettably unparticularised – in the Family Report with which she disagreed but said that she was prepared to “take on board” the recommendations. She also noted that family therapy had begun, but without acknowledgement that this was being paid for by the Father. Again the Mother referred to the very serious incidents in mid-2019 involving the children.
63. These paragraphs also recounted a number of matters, still from earlier in 2019, regarding the children’s mental health, including reference to a number of Y’s and X’s psychologist’s reports in May and August 2019, some of which were previously referred to in the Father’s material.

Tender Bundles

64. Both parties provided tender bundles: the Mother’s bundle became Exhibit B; the Father’s bundle became Exhibit C. Naturally the Court is always excited, especially in interim proceedings, to receive more material, nearly all of which (a) came at additional financial cost to the parties because of the collection and collation of the material by their lawyers, and (b) highlights, if more be needed, how entrenched, and in some ways innovative, the parties have become in their litigious, all-consuming contest. Neither side will give an inch (or centimetre). It is a case, it seems, of who will “blink” first, or collapse (financially or otherwise); such is the tragically ruinous path upon which each has seemingly determined.
65. Alarmingly, at the moment, unless the parents get a much better grip on their litigious horses (and much else), it seems that the children will be, or become something akin to, equally tragic “collateral damage”. Moreover, it seems that, in part because the parents are such different personalities (based at this stage on their Affidavit material and on the Family Report – all untested of course) with equally radically different parenting styles, there shall be no meeting of minds any time soon on anything. Mutually assured destruction – psychological, emotional and financial – seems to be the lot and destiny of the parties and all who sail in their embittered barque, headed for the most deadly shoals. Metaphorically and otherwise, if the Scylla of their property dispute does not obliterate them, the Charybdis of the parenting contest will pitiably do so.
66. In any event, I note the following from these tender bundles. Unsurprisingly, the documents in the Mother’s tender bundle focus largely, but not exclusively, on financial matters. Similarly, the documents in the Father’s tender bundle go pre-eminently to parenting matters.
67. The documents relied upon by the Mother are:
    1. a quote (described as an “invoice”) from Dr H for ceramic braces (total: $11,662). It is unclear to which child (or children) this relates;
    2. a copy of the Father’s CBA credit card statement, starting on 22^nd February 2020 and ending 24^th March 2020;
    100. items 3 and 4 are lists of properties sold, sale prices, and properties not sold, of the kind the Mother wishes to purchase;
    4. correspondence between the parties’ lawyers dated 10^th and 22^nd April 2020 respectively; and
    5. a letter, dated 20^th April 2020 from Ms J, Y’s psychologist.
68. For my part, most of these documents require no comment because their contents speak for themselves, save perhaps the lengthy note from Ms J. In that letter she records her regular treatment sessions with Y from August 2019 until March 2020. The letter also records her contact with, for example, the Father and the Mother, and Y’s GP. Suffice to say that there have been significant and ongoing difficulties noted by Ms J regarding Y’s engagement with her Father. There had been positive steps also but, it seems, on this material (and subject to what is set out in the Family Report, noted below) that degrees of fragility and difficulty persist on all sides.
69. The Father’s tender bundle material focused primarily on emails with, and internal to, the school. Most of these are from February and March 2020, but a number are from 2019. Summarily they show:
    1. The Mother regularly attending the children’s school and seeking out information for use in the current proceedings. Teachers who have been approached by the Mother about such information have expressed concern. The school has been accused by the Mother of not doing enough to support the children’s safety and welfare;
    2. The Mother being disrespectful to staff at the school, with the latter trying to calm the Mother down in front of the students and other parents;
    100. A lengthy report of a conversation between X and a classmate, overheard by a parent of the child, in which X expressed, among other things, reluctance about going to school and concerns about the support she was receiving and being protected from her Father;
    4. Email correspondence with the school, dated 15^th February 2020, in which the Mother has set out, in my view, extensive material “from a report that will go to court”.
70. As an observation only, the correspondence with the school strongly indicates the Mother’s [concerning] (a) attempt to garner information to use in the current matter, and (b) sharing information from the Family Report, contrary to s.121 of the Family Law Act 1975 (Cth) (“the Act”). It also reasonably clearly indicates that the children (a) know more about the litigation than they should, and (b) share this information somewhat freely, which they also should not do. All of these matters suggest lack of discretion and insight, as well as unrestrained and unhelpful conduct. Doubtless they, and much else, will be explored at some length at the trial.

The Family Report

71. As already indicated, this detailed Report of Ms B was released to the parties in January 2020. It became Exhibit A. It is an extensive, detailed Report. It was obviously prepared in anticipation of the then scheduled final hearing in early April. For the purposes of the current, interim proceedings, I need only note the following.
72. In the course of Ms B’s interview with the Mother, the Family Consultant asked to what extent the girls were aware of the financial issues between the parents. To this, the Mother said (par.30):
    • ... “The girls are very switched on and so they are well aware of the financial problems. And their lifestyle has changed substantially.” The report writer commented that this change of circumstances, if the girls perceive it to be their father’s fault, could make him a ‘villain’ in their eyes. Ms Dalgleish agreed. She said that, “This is the role that Mr Dalgleish has created for himself because of his behaviour. They do feel wronged by the way that things have worked out.”
73. After noting (at par.55) her doubts about the Father’s capacity to change his behaviour, and his inability to see “the impact of his mean actions on the girls”, the Mother said, at pars.57 and 58:
    • [57] ... Ms Dalgleish said that Mr Dalgleish has had an “opportunity to do the right thing” by the girls, by agreeing to a financial settlement that would allow Ms Dalgleish to purchase an unencumbered house, “because their lack of a forever home is stressful for them.” Ms Dalgleish said that Mr Dalgleish’s choice to not do this, strongly suggests that he doesn’t care about the girls’ wellbeing and they are aware of this and they feel let down by their father.
    • [58] Ms Dalgleish said that the best way forward “is for the girls to tell me when they want to see their Dad. I can’t (and won’t) force them to do anything. Like when he wouldn’t give X her ‘onesie’ for school camp she told him that she didn’t want to speak to him for two months. And how do you make sure that they’re (going to be) safe?”
74. At par.62 the Family Consultant reported the Mother’s concern about her attempts to hide her own fragility from the girls, how they can see how much pressure she is under, and her doubts about how she is going to be able “to keep on with this much longer.”
75. In the course of the interview with the Father, at par.68, the Report recorded:
    • Mr Dalgleish said that one of the other things on his list from marriage counselling “was that she needed to support my parenting more. Ms Dalgleish would cave to anything the kids wanted. But (my view) is they needed consequences to be consistently applied. If I imposed a consequence, she would lift it 20 minutes later. Once I recall that she laughed at me, in front of the girls, when I threatened consequences.”
76. The Father’s strong response to the Mother’s allegations of sexual assault are set out at par.71, but which I need not set out here.
77. In relation to Y’s self-harming, at par.77 it is recorded that:
    • ... Mr Dalgleish said that “if you look at the timeline, it started just after Ms Dalgleish started allowing the girls to ‘opt in’ whether or not to see me, and the worst of it was in the time after they stopped seeing me altogether. I’m not saying I’m blameless, but I think that the conflict plays a really big part in how Y is feeling.”
78. After traversing matters such as the parties’ post-separation financial issues (pars.78 – 80), and post separation parenting arrangements (pars.81 – 90), there is a brief account of one of the serious incidents involving the girls referred to earlier in these reasons. At pars.89 – 90 there is this narrative:
    • [89] Mr Dalgleish reflected on what occurred in May 2019. He said that prior to this, there had been an incident with Y “when I carried her kicking and screaming to the car (because she didn’t want to go somewhere) and she scraped her foot against the fence. Would I do that again? In a perfect world, no. But she does have a stubborn streak.”
    • [90] Mr Dalgleish said that he had given Y a certain amount of time to finish downloading songs on her iPad “and she was being really slow, so I took the iPad off her and we had a tussle over it and she fell over. X then went straight to the window, opened it and yelled out ‘help, help, Dad’s abusing us’. Then they each ran to different bedrooms and were yelling out the windows. Y was standing behind the door when I forced it open so yes, it would have hit her. It was maybe after that, that she got a knife? Which I took off her. Then the police arrived.” Mr Dalgleish emphatically denied abusing the girls in the manner that Ms Dalgleish has suggested. He pointed to the (significant) discrepancy between first-hand, contemporaneous police interviews had with the girls separately at the time, and what Ms Dalgleish said that the girls told her afterwards. Mr Dalgleish expressed the view that it surely makes sense to be guided by the former not the latter.
79. It is important to set out in full the account of the interviews with each of the girls, at pars.101 – 129 (bold emphasis in original; bold and underlined emphasis added):
    • [101] ... In the joint interview, X dominated the conversation, with Y barely saying a word but nodding emphatically at everything her sister said. In this interview, when the report writer asked what the girls had been told about to expect, X immediately said, “We are worried that the Court will make us live with our Dad.” When asked why this would make them feel worried, X said “Because Dad lies about things. And he called me stupid. He has an image that he wants to keep to, when friends come over. But he’s really rude to us. And when I would bring up stuff about him with my psychologist, she would say that he still loves me!”
    • [102] X (aged 12 years) presented as a confident, articulate and friendly young girl. She engaged enthusiastically in her individual interview, which went for approximately 90 mins. In the whole of this time, X barely paused for breath. She was reluctant to engage in any rapport building conversation, preferring instead to immediately state her issues with her father, in a forthright manner. X would, however, appear anxious and hesitant when the report writer attempted to take the conversation down a different path, and she was particularly resistant to any questions that challenged her (very concrete) world view. While X is seemingly mature for her age, in the way she converses and offers her opinions, the report writer’s view is that this is a pseudo-maturity. X appears to have fully internalised her mother’s views about Mr Dalgleish and she views herself as her mother’s confidante, in a blurring of appropriate parent/child boundaries.
    • [103] X said that “it didn’t surprise me” when her parents separated, because “Mum and Dad have been arguing since I was born. Dad would get all angry with his hands. Mum said he’d been saying things to her for years. And doing bad stuff. Questioning stuff that she did.”
    • [104] The report writer commented that her parents had said she was quite close to her father before the separation. X denied this, saying that “Dad was quite distant because he was never there. He never took us to stuff. We never did things with him by ourselves. Mum told me that she’s been a single parent her whole life because Dad always worked.”
    • [105] The report writer commented that X seems to have been told quite a few things by her mother. She agreed. She said, “I didn’t know a lot of stuff then (before the separation), that I know now. About Dad’s compulsive lying and his aggression and his abuse. I didn’t know that he would be so abusive towards us. I didn’t know that he had two faces.” The report writer queried how X wouldn’t have known about being abused? She looked confused at this point, but said, “Every single thing that Mum has told us, has related to things he has actually done to us.”
    • [106] The report writer asked X for examples of her father’s abuse. She said that, “It feels like he’s been abusive and aggressive towards us forever. Like once he dragged Y to the shower and I don’t know why he needed to do that. Another time when Y didn’t want to go to a family thing, Dad grabbed her and carried her, and he was scraping her leg on the fence and she could have got splinters! She was screaming out stop, stop!”
    • [107] X said that after her father moved out, “me and Y started realising things. Like when I saw a box in his room, and I asked what was in it and he said it’s none of your business and then after that he removed it.” The report writer asked X if she and Y were looking for specific things. She said that, “We looked for stuff because we were suspicious. Because Mum told us that Dad had a girlfriend. I was angry because Mum told us that Dad and the girlfriend had both cheated. Mum was worried about us. She told us that he’d been aggressive towards her.”
    • [108] The report writer asked X to recall the events of 2 May 2019. She said that she didn’t really see what happened with her father and Y, only that “they were wrestling with the iPad and I went to open the windows so people could hear what was happening. And then Dad picked me up and threw me across the room! And I managed to get his phone off him. There was shoving and wrestling. Y was screaming at him, but he was doing it worse (to her). That’s why she had to grab the knife. To defend herself. And he almost cut her when he took it off her!”
    • [109] X described this incident as being so traumatic “that we’ve been scarred for life.” The report writer asked X if there is any possibility of her and Y being able to move on from that night and try to repair their relationship with their father. X was resolute. She expressed the view that, “Dad is a bad person. We feel that he doesn’t really love us. Because of how he treats us - how could he love us?”
    • [110] X was very keen to read aloud some texts she has written to her father and also to her paternal grandmother, who X described as “a big part of the problem. Because she tells me I am misinterpreting things. But how could I be wrong about the police arriving at his house?” These texts were long and detailed. The ones to her father are hostile, accusatory and aggressive, with a lot of swearing. The report writer commented that most parents would be upset if their children talked to them like that and, for example, X wouldn’t be allowed (presumably) to speak to any other adult in that manner. She said that, “I don’t think that I’m ever disrespectful to Dad but all he ever does is hang up on ME. How rude! I’m not rude. I’ve never said that I hate him.”
    • [111] An excerpt from a text that X sent to her paternal grandmother read as follows: My father has ruined my life for me, Mum and Y. He should be in jail for how often he has abused us. He gave Y depression and now Mum is under so much stress because of him. He has physically and emotionally abused us. He has a secret girlfriend. He is the reason everything is crashing and burning.
    • [112] X commented that crashing and burning refers to the fact that “we’re drowning under everything he’s done to us! He’s the one who left! Mum told us that he wanted all the expensive furniture. Mum told us that she tried so hard to keep the marriage together and he thought everything she did was just a joke. She tried, and he didn’t. And that makes me really mad. It’s not right. And when I try and tell him how much he’s hurt us, he thinks we’re a joke too.”
    • [113] X said that she has “major trust issues” with her father, because of things that he done “like when he kept us at his house over Easter. And there’s no connection with him. I’m not comfortable with him. He’s got a house, not a home. And he is always on his phone! He is so distant. And he loses his temper all the time! And when we get angry with him, he threatens to send us back to Mum’s and then he doesn’t!”
    • [114] X said that in contrast to her father, her mother “as being how a parent should be. She’s secure and safe and comfy. It’s a real home with her. It’s comfortable because you know that she won’t hurt you. But I feel that with Dad, he may hurt me at any moment.” She said that, “He might be so nice to us at first, but you would quickly realise that he hasn’t changed at all. That’s because I have intuition about all that. Do you know that once we saw all these emojis on his phone, there was love hearts and an eggplant emoji and I know damn well what that was about, and I was upset because he was lying to us!”
    • [115] X said that her “intuition” was also helpful with her psychologist, “because something was off with her from the beginning.” X recalled that the psychologist kept talking about her father in a positive way and X felt that she wasn’t being listened to or taken seriously, so she decided to stop seeing her.
    • [116] The report writer asked X what she thinks her mother wants, in regard to the girls spending time with their father. X said, “Well she wants what we want. She wants the best for us. She wants us to live with her, but what mother wouldn’t?” The report writer asked X how her mother might feel, if she and Y were to spend time with their father. X said that, ‘I would worry about her if we saw him because it would be a lot of pressure for her. Because just the chance we could have to live with him, when she knows how psychotic he is, with his abuse and aggression.”
    • [117] The report writer asked X if it would be easier if the Judge made a decision about her spending time with her father in the future (rather than her parents deciding). X looked horrified. She said that, “I would want to KILL the Judge if he made us go back there! I’ve given him (her father) so many chances and he’s thrown them all out the window! He didn’t even deserve that many chances! Like when I went to his house for help with my homework and he sent me to my grandmother’s house, and I was balling my eyes out! And he’s treating me like he’s not ever done anything wrong and he hasn’t said anything to me about how badly he’s treated me.”
    • [[118] X said that, “We want to be able to see him, when WE want to, not when HE wants to. And only phone calls.” X said that she really couldn’t imagine a time in the future when she would spend time with her father again. (However, the weekend after this interview, X did in fact, spend five hours with her father, for the first time in six months.)
    • [119] Y (aged 10 years, 6 months) presented in a markedly different manner to her sister. She was considered in the way she offered her opinions, which were complex and nuanced. Y was less concrete in her thinking than X and open to being reflective. She demonstrated insight into the family situation and a willingness to think about people’s intentions and motives. There were, however, strong indications that Y has also been exposed, in an unfiltered way, to her mother’s views about her father.
    • [120] The report writer asked Y to describe herself. She said that, “I’m nice, but I won’t let people talk badly about me. At school, I’m quiet and considerate. At home I’m loud, because I’ve known people at home longer. I do give Mum a bit of hard time sometimes. Because I’m a bit stubborn. And I’m pretty fussy with food. I only like ice cream, chips and chocolate and maybe strawberries and apples.” X said that her “most favourite” thing to do is to play on her iPad and she would spend all day on it, if she could. She said that her mother doesn’t really have any rules about how much time she can spend on the iPad. X nominated her other interests as animating, reading and sleeping.
    • [121] The report writer asked Y why she had recently chosen to go ice-skating with her father, when she had not seen him for a long time. She looked thoughtful and said, “Because everyone deserves a second chance. I went ice-skating so that he can learn to be nice. Because maybe he didn’t get treated properly when he was growing up? I think he was spoiled, and he was allowed to lie.” Y recalled that she had a good time with her father on that occasion. She said that, “X thinks he is being fake nice but I’m not sure.”
    • [122] Y said that when she and X were spending weekends with their father, “I used to try and run away because of a bad feeling I had about him. He was lying a lot and he wouldn’t let us in his bedroom. He was very secretive. He was always texting someone. We suspected him of cheating with this girl called Ms K. And we barely ever went out, only to gym and the shops. Really, I feel uncomfortable with him because he’s not Mum.”
    • [123] The report writer asked Y about the time earlier in the year when she was self-harming and had suicidal thoughts. She said that “this was about school and about Dad. I didn’t have any real friends. They (her peers) were being violent towards me – one person in particular. But now it’s mostly stopped.”
    • [124] In relation to her father’s role in her self-harming behaviour, Y said that “I felt I had to choose sides. With all the stuff that was going on. And so, when the police came (that night), it made it easier. And I was pretty judgmental back then. Now I’m different. Because I’ve watched videos about being nice and being mean. Dad probably feels guilty and he doesn’t understand why we don’t want to spend time with him.”
    • [125] The report writer asked Y if she worries about her mother. She said that she does, “but X definitely worries more.”
    • [126] Y described the differences between herself and X. She said that “X is more confident than me. She puts family and friends and her pets before iPads. She’s more judgmental than me. She hates drawing. She likes dolls, I don’t. She wears dresses and I don’t. We’re both kind of friendly. Sometimes we fight over stupid stuff, and we don’t want to play with each other.”
    • [127] Y described her mother as “confident, kind and friendly. Not angry. She’s more honest than Dad. She’s loyal, not like Dad who just found someone new. She’s much calmer and friendlier than Dad. She has many more friends than he does. And she does get anxious and stressed sometimes.”
    • [128] Y expressed the view that she wants to spend the majority of her time living with her mother, “and maybe see Dad once or twice a year? Dad needs to admit to everything, he needs to give us more money – Mum has to beg him for money! We might not be able to stay at the same school next year if he doesn’t give her money. Dad needs to be more kind. And stop being secretive.”
    • [129] The report writer asked Y how she would feel if the Judge decided that she should spend more time with her father. She said that, “I would feel annoyed and sad. But maybe glad, because then I could get my iPad back!” Y laughed uproariously at this. She then said, “Maybe we could just have a visit for Christmas, because I know that people would be disappointed if their family didn’t come for Christmas.”
80. To state what, in my view, is reasonably obvious (again, observations only): (a) the girls know much more about what is happening in the litigation than they should; (b) they are now, in a significant number of respects, “driving the parenting bus” than are the parents, acknowledging that, at this juncture, the Father has very limited involvement in, or engagement with, his daughters; (c) certainly in Y’s case, she displayed a maturity beyond her years when she said (par.121) that “everyone deserves a second chance”. If only her parents took a similar, conciliatory line, who knows what might be possible in the resolution of this matter.
81. In comments by Y’s class teacher (pars.137 – 144), the lack of boundaries in the Mother’s house, and the toll generally the litigious drama is taking on the child (doubtless on both children) was recorded.
82. Other sources of “collateral information” came from Ms J (Y’s counsellor), and Mr L (X’s former counsellor), and ACT Child and Youth Protection Services, among others.
83. Ms B’s evaluation was at pars.179 – 210. From this detailed section, I note only the following for current purposes.
84. After noting, at par.183, the Father’s growing concern about the differences in parenting styles, and that there appeared – according to Y’s own report – to be no limits at all at her Mother’s house, for example, in her use of an iPad, at par.184, Ms B said:
    • It appears that the dynamic which was established within the marriage – Ms Dalgleish feeling overwhelmed by her responsibilities and unsupported by a financially controlling and emotionally cold Mr Dalgleish and Mr Dalgleish seemingly at a loss as to how to respond appropriately to this distress and anxiety, together with quite different approaches to parenting the children – has continued post separation and created significant obstacles to the development of a healthy co-parenting relationship.
85. Of significant moment are Ms B’s self-explanatory comments at par.187 (emphasis added):
    • It is the report writer’s view that the nexus between property issues and parenting issues in this matter is significant, so much so that it is virtually impossible to separate them when assessing how and why the children’s relationship with their father has deteriorated to the point it now has. The parties’ respective accounts of their financial circumstances, their actions, and the alleged behaviours of the other, are markedly different. Each say that they have the facts that will prove their claim and expose the other’s as false. This is, of course, a matter for the Court, should the property matter proceed to a final hearing. In the interim though, regardless of whose account is the truthful one, it is undeniable that the girls are being substantially impacted by their parents’ inability to resolve financial matters expeditiously and in a manner that would reduce any stressors they are currently subject to.
86. The Family Consultant commented further, at par.191 (emphasis in original):
    • The report writer’s interviews with the girls and both of their parents however, indicated a level of nuanced complexity in this matter, whereby there are elements of realistic estrangement because of the way Mr Dalgleish has behaved since the separation; and overt parental influence due to very poor boundaries on Ms Dalgleish’s part, both deliberately (by involving the girls in adult matters which are well above their level of maturity and cognitive understanding) as well as less directly as a result of her particular emotional vulnerabilities; and each girl’s personality and temperament, which makes them particularly vulnerable to feeling the impact of the parental conflict and maladaptively trying to manage it.
87. It is worth noting the further comments at pars.198 and 199, which follow earlier comments regarding the Father’s intransigence over various monetary and related matters, (bold emphasis added):
    • [198] Ms Dalgleish described the girls as being “very switched on and so they are well aware of the financial problems. And their lifestyle has changed substantially.” While children whose material lives have changed substantially following a separation are likely to be distressed or and/or anxious about this, it is a parent’s responsibility (both parents’ responsibility) to buffer them as much as is reasonably possible from this fallout and to manage their expectations and help them cope with adversity using, for example, flexible thinking. It is the report writer’s view, however, that Ms Dalgleish’s untrammelled distress, anxiety and palpable anger about her reduced and constrained circumstances has been such that the girls are acutely aware of how the situation is impacting on their mother and they are deeply affected by this, far more so than by their actual living circumstances, but it is likely that the two things are now conflated.
    • [199] Ms Dalgleish appeared to suggest that she is currently at breaking point. “The girls can see how much pressure and stress I am under, even though I do my best to hide it from them. (I think) my capacity to support the children is declining. It’s like a tunnel that goes on and on. I don’t know whether I’m going to be able to keep on with this much longer.” The report writer’s view is that the “pressure and stress” come from two main areas: the unresolved property matters and the fact that Ms Dalgleish still feels under pressure to ‘encourage’ the girls to spend time with their father when she believes this is not in their best interests.
88. Likewise, at par.203, Ms B said (emphasis added):
    • [203] Ms Dalgleish’s very firm view is that she has nothing to do with the girls’ rejection of their father. She believes it is their lived experiences with their father which have directly led to the breakdown of their relationship with him – while she has either stood on the sideline as a spectator, or been put in a position “where I am held responsible to keep them safe, when it’s Mr Dalgleish who is causing them harm.” Yet Ms Dalgleish was unable to refer to any specifically abusive behaviours on Mr Dalgleish’s part that would result in a child not wanting to spend time with a parent, other than what occurred on the night of 2 May 2019. In respect of this, when contemporaneous (police) accounts contradicted the subsequent recollections of the girls, Ms Dalgleish chose to believe the girls, saying that they were either too frightened and/or too confused to tell the police the truth. She was dismissive of the contribution of Y’s behaviour on the fracas that night, even when she has confirmed that Y can be an extremely challenging child to parent. And it is Y’s own words that give the greatest clue to what actually happened that night: In relation to her father’s role in her self-harming behaviour, Y said that, “I felt I had to choose sides. With all the stuff that was going on. And so, when the police came (that night), it made it easier. This statement raises the possibility that Y deliberately behaved in the manner she did in order to cause a scene. That the girls behaved so dramatically and so disproportionately in relation to what actually occurred, even if their father did yell at them and push open the door and wrestle the iPad off Y (behaviours that were unwise and inflammatory under the circumstances) suggests that they were emotionally primed to create a scenario that made it easier to reject their father because it effectively reduced the cognitive dissonance.
89. Although the rest of this section of the Report is important (pars.204 – 210), it is otiose to set it out here. No less important are pars.211 – 219, which includes the observation (at par.214) that the resolution of the property side of things will likely aid in moving the parenting matters forward. I should also note the signally important par.213, which summarises many other aspects recorded by the Family Consultant, such as the enmeshed relationship in particular between the Mother and X (par.209):
    • If there is no change in Ms Dalgleish’s attitude towards Mr Dalgleish’s role in the girls’ lives, it is highly unlikely that an ad hoc arrangement, predicated on the girls’ choosing if, when and how to see their father, will result in any other than the most minimal, poor quality contact. The girls are simply not ‘free’ to exercise this choice outside of their mother’s pervasive influence, their need to protect her emotionally and their own internalised and distorted cognitions about their father.
90. I stress that in recording the matters in the section above, they are set out primarily for consideration. They are not indicative of some unalloyed view or determination by the Court. For any findings, the Court (and the parties) must have the relevant opportunity to consider and test all the evidence, which will include some presumably lengthy cross examination of the parties and the Family Consultant. Doubtless this is something that everyone awaits with eager anticipation.

Outline of submissions on behalf of the Applicant Father

91. The Applicant Father filed an Outline of Submissions on 28^th April 2020, as follows:
    • SUMMARY OF SUBMISSIONS
    • 1. The applications before the Court concern parenting matters for the parties’ two children, X (born in 2007) and Y (born in 2009) (“the children”). The father will file a Minute of Orders Sought and a further affidavit and financial statement.
    • 2. Submissions will be made as to the required approach in interim parenting matters1.
    • 3. The hearing is occurring in circumstances where:
      • 3.1. Orders made by consent on 19 August 2019 have not been followed and the children are not having regular time with the father;
      • 3.2. The children are strongly aligned with the mother and her blaming narrative of the father;
      • 3.3. The children’s relationship with the father and the benefits that provides to them, is imperilled.
    • 4. Ms K has prepared an expert report (released by order on 17 January 2020) (“the report”). The father seeks orders which largely reflect and follow the recommendations of Ms B. The parties and the children have commenced family therapy with Ms K (“the therapy”) (the father is meeting that cost).
    • 5. The father seeks an order that the report is immediately made available to Ms K, to assist in the therapeutic process (and as was recommend in the report).
    • 6. Subject to the success of the spend time orders proposed by the father and the continuing therapy, the father seeks the matter is otherwise adjourned to a date in around three months, to ensure the court is able to provide necessary supervision of the children’s orders. A further hearing may be required at a subsequent date.
    • 7. In addition to the report and the affidavit evidence relied upon by the father, the father will provide the Court with a range of documents produce as a consequence of the section 69ZW order and as a result of subpoenas issued by the parties. A (digital) tender book will be completed and be produced to the court.
    • 8. It is submitted that a proper engagement with the evidence in this matter does not support the mother’s contention that the children are at risk in the father’s care (either of actual harm or psychological harm. Instead, the children are at risk of psychological harm (as opined by the expert including in paragraph 217 of the report) if the mother persists in immersing the children in the adult matters and her adverse views of the father.
    • 9. The father provides evidence in his most recent affidavit of the mother’s continuing failure:
      • 9.1. To shield the children from her poor views of the father;
      • 9.2. To engage directly with the father about parenting matters (instead requiring the children to do so);
      • 9.3. To engage with the father about matters relating to the exercise of parental responsibility (including about the declining health of Y and engagement of psychologists);
      • 9.4. To shield the children from exposure to her views about adult matters (including financial matters) and her blame of the father (to the children) about these matters; and
      • 9.5. To be able to properly support the spend time arrangements, setting up spend time arrangements “to fail” by directing the children they did not need to attend, among other things.
    • 10. Robust engagement in the next phase of the father’s time with the children (scaffolded by specific orders) is essential to moderate the continuing risk to them of the mother’s attitude and conduct.
    • Financial matters
    • 11. The mother seeks interim property orders that she should receive all of the sale proceeds of the family home. That is opposed by the father. The parties have recently agreed the release of a further $10,000 to the mother from the sale proceeds.
    • 12. The spousal maintenance orders sought by the mother are opposed. The father is presently paying in excess of $1,100 to the mother (child support of $684 per week; school fees of $400 per week and private health insurance for the children) and is now paying for family therapy.
    • Reliance upon additional evidence
    • 13. The father will seek leave to rely upon an additional affidavit and financial statement completed on 28 April 2020.

Outline of submissions on behalf of the Respondent Mother

92. The Respondent Mother’s Outline of Submissions, sent to Chambers via email on 29^th April 2020 (formally filed on 5^th May 2020) was as follows (footnotes omitted):
    • Submissions
    • A. Summary of the interim relief sought by the wife
    • 6. The property of the parties available for adjustment is:
      • a. the remainder of the proceeds of sale of the former matrimonial home at Suburb M (sale completed December 2018 – 18 months ago) held in a controlled monies account $889,726;
      • b. the husband’s motor vehicle $14,850 (in the wife’s possession);
      • c. the wife’s superannuation $267,576;
      • d. the husband’s superannuation E$1,200,000.
    • 7. In addition, the husband has retained the benefit of:
      • a. The increment of the value of the mortgage from separation until the date of completion of the home - $20,468 - $230,042 = $209,574.
      • b. The cashing in of the N Investment Account $31,418;
      • c. The insurance proceeds from the Motor Vehicle 1 $19,075
      • Total retained by the husband = $260,067
    • 8. The wife does not have any meaningful non-superannuation property available to her. She and the children live in rental accommodation.
    • 9. The wife seeks access to property to acquire a home for occupation by she and the children. The husband opposes that course and, with respect, engages in a process of oppression by releasing drips of money from the controlled fund to the wife – so that the wife is required to live out of capital, at his discretion. The inequity of that circumstance, is self-evident.
    • 10. The wife in not in receipt of any income save child support. She gives evidence in her affidavit as to the parties undertaking roles within the marriage dynamic whereby the husband progressed his career and adopted the primary role of wage earner, and the wife surrendered her career and adopted the primary role as parent5. The wife undertook some part-time work as an administrative assistant and unsuccessfully tried to launch an online business in 2016/2017.
    • 11. The wife further seeks an order for interim periodic support in circumstances where she has no income. The husband earns an income of $248,472 per annum. He has retained the benefit of not less than $260,067 in the property of the parties post separation.
    • 12. The wife is currently indebted in the sum of $100,000 by way of legal fees. The husband has expended more than $100,000 in legal fees post separation – either using the funds he retained on separation7 or his income
    • 13. The interim parenting orders made by consent on 19 August 2019 have been ineffective in circumstances where the children have expressed a strong view not to spend time with the father. Whilst the mother disagrees with aspects of the Family Report writer’s analysis, she agreed to process of family therapy. That process has recently started and ought to be permitted to progress.
    • Relevant Principle
    • 1. The Full Court in Strahan (2013) FLC 93-466 revisited the principles effectible to interim or partial property orders, and set out effectively two steps being:-
      • a. Establishing that S.80(1)(h) is enlivened. The test is not confined to “compelling circumstances”. More is required than the mere fact that upon a final hearing the Applicant would receive the property sought. This first step requires the “overarching considering” of the interests of justice; and
      • b. The 2^nd step requires regard to be had to the “usual matters in a S.79 determination” and therefore some assessment of S.79 factors. Given it is an imprecise exercise in the making of these orders any discretion ought be:-
        • i. Conservative so as to ensure the final property outcome is not compromised; and
        • ii. That the remaining property is sufficient to meet the legitimate expectation of both parties at the final hearing – a significant matter having regard to any significant disclosure failures; and
        • iii. The interim or partial order is capable of being reversed or adjusted if it is subsequently considered necessary to do so.
    • 2. The husband concedes by way of his substantive relief sought in his Reply as to it being in the interests of justice for the Court to exercise a property power. The factual circumstances, and the reasoning of Hannam J in Auden [2019] FamCA 17 is apposite to this circumstances in this matter, identifying the overarching interest of justice to exercise an interim property power.
    • 3. Self-evidently, there can be no benefit to funds remaining in a controlled monies account when they can be applied to provide accommodation and security for the wife and the children (avoiding the necessity for she and the children paying rent of $550 per week, or $28,600 per year – compared to the funds in the controlled monies account earning nominal interest).
    • 4. Absent order, the monies will stay in the controlled monies account over what is anticipated to be an extended period of time pending this litigation concluding – perhaps a period of 12-18 months.
    • 5. Any contention made by the husband as to the wife receiving more than she would ultimately receive by way of final property settlement on the interim exercise of power as sought – hence offending the principal as to “claw back” or reversing the effect of the order – is overcome by the undertaking proposed by the wife that she provide the husband with 28 days’ notice of any intention to encumber or deal with the real property she would acquire with the interim property distribution pending a final hearing.
    • If a loss is occasioned, that loss can be adequately taken into account in the final s.79 determination.
    • 6. The relief sought by the wife, in addition to saving rental costs, has the potential of increasing the value of the property of the parties by way of market forces during the period of time awaiting final determination of the proceedings.
    • 7. As to spouse maintenance:-
      • 7.1 S.72 of the Family Law Act imposes an obligation on spouses for mutual support.
      • 7.2 Section 74 contains the basal principle in the Family Law Act in relation to spouse maintenance. That section provides that in proceedings with respect to the maintenance of a party the Court may make such order as it considers proper.
      • 7.3 In Bevan (1995) FLC 92-600, the Full Court held that an award of spousal maintenance requires:
        • (a) a threshold finding under section 72;
        • (b) a consideration of sections 74 and 75(2);
        • (c) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
        • (d) discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
      • 7.5 The threshold question for the Court is whether the applicant is “unable to support herself or himself adequately”, not only by reason of the matters set out in (a), (b) and (c) of s72, but also having regard to any relevant matters referred to in section 75(2).
      • 7.6 Adequately imports relativity. Reasonableness is the key.
      • 7.7 By way of s.72, a stepped process has been formulated as to whether an order for spouse maintenance should be made8 being:-
        • a) to what extent is the wife unable to support herself – see the wife’s financial statement. She has no income;
        • b) what are the wife’s reasonable needs again, see her financial statement, dependant what interim property adjustment is made in favour of the wife;
        • c) what capacity does the husband have to meet an order – see his income.
    • Here, steps (a) to (c) favour the wife.
    • The alternate orders she seeks are reasonable having regard to s.75(2).

Outline of submissions by the Independent Children’s Lawyer

93. The Independent Children’s Lawyer filed an Outline of Submissions on 29^th April 2020, as follows:
    • ICL’S OUTLINE OF SUBMISSIONS
    • 1. The proceedings concern the parties’ two children X born in 2007 (12 years, 4 months) and Y born in 2009 (10 years, 10 months) (‘the children’).
    • 2. Orders in relation to the time the children are to spend with the Father (made by consent in August 2019) have not been complied with as the children refuse to spend time with the Father (paragraph 13, Family Report of Ms B dated 9 January 2020 (‘Family Report’)).
    • 3. The children appear not to have spent regular time with the Father since about April 2019. Essentially, each party blames the other for the estrangement of the children from their Father.
    • 4. The ICL understands the Father seeks time as recommended by the Expert Witness, Ms B (‘Ms B’), and the Mother seeks time in accordance with the children’s wishes.
    • 5. In accordance with the recommendations made by Ms B at paragraphs 220 – 225 of the Family Report, the parties agreed to attend upon Ms K for family therapy and the Father is meeting those costs. The ICL understands the children have attended upon Ms K on one occasion via Zoom.
    • 6. To assist with the process of family therapy the ICL supports a copy of the Family Report being provided to Ms K. Whilst acknowledging the Family Report is untested, the ICL considers that Ms B has provided a detailed and compelling overview of the difficulties between the parties, how those difficulties came to be and how they have been exacerbated post-separation. The ICL submits that Ms K is likely to be assisted in her role as Family Therapist by having access to the Family Report.
    • 7. In circumstances where the parties agreed in August 2019 to the children spending regular time with the Father and where Ms B recommends it, the ICL submits such time should be occurring.
    • 8. That it is not occurring is likely because neither party has or can ‘shift their thinking, substantially, in relation to what the girls need from them, and in doing so, separate their needs from the girls’ best interests, which is to have healthy, functional and conflict-free relationships with each of their parents...’ (paragraph 216 Family Report).
    • 9. The ICL supports Ms B’s position that a shift in the parties’ respective thinking as referred to above involves:
      • a. The Mother either changing her views or protecting the children from her ‘rigid, distorted and disproportionate’ thinking about the Father as a threat to the children;
      • b. The Father being more sympathetic to the financial situation in which the Mother finds herself and how this is affecting her and the children; and b. The Father being more sympathetic to the financial situation in which the Mother finds herself and how this is affecting her and the children; and
      • c. Both parties finding better and more consistent ways to address the children’s more challenging behaviours.
    • 10. Whilst the ICL does not intend to seek orders that the parties obtain their own counselling and treatment to address the above issues, the ICL considers it should be something the parties are investigating if not already doing of their own volition. The ICL would support a copy of the Family Report being provided to the parties’ individual therapists.
    • 11. The ICL submits that the orders for time between the children and the Father should be clear and unequivocal and in the terms recommended by Ms B at paragraphs 223 – 225 of the Family Report.
    • 12. In the event the Court forms the view that the Mother is unlikely or unable to comply with the orders or that, in fact, occurs, the ICL submits it would be appropriate to obtain an update or addendum from Ms B prior to the final hearing which considers possible solutions including, but not limited to, a change of residence for the children.
    • 13. The ICL does not wish to be heard as to Spouse Maintenance, but notes the comment of Ms B that ‘whilst it is not appropriate for any parent to try to bargain a favourable property settlement in exchange for supporting the other parent’s relationship with the children’ (paragraph 215 of the Family Report) a property settlement might move the matter forward.

Outline of principle - Parenting

94. For immediate purposes it is sufficient to note the following, long-standing principles.
95. In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:^[8]
    • [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
    • [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
    • [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
    • [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
96. Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:^[9]
    • [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
      • The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
    • [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
    • [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
      • The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
    • [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
      • [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
      • ...
      • [199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
    • [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
    • [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
    • [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97. Further, and in addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF.^[10] For example, in that case, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”^[11] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an Application regarding “relocation.”
98. In the same case, Hayne J said (internal citations omitted; emphasis added):^[12]
    • [204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
    • [205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
99. Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court.
100. To these matters I simply remind myself of the importance of proper regard to the “primary considerations” in s.60CC(2)(a) and (b) and the more recent statutory instruction in s.60CC(2A) to give “greater weight” to the consideration set out in paragraph 2(b), which refers to the Court having proper regard to protect the child “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”^[13]

Outline of principle – Interim property orders & spousal maintenance

101. As Senior Counsel for the Wife noted in his extended submissions, the Full Court decision in Strahan v Strahan set out relevant principle regarding interim property Orders, albeit without reference to relevant paragraph numbers.^[14] From the extensive discussion by the Full Court in that case at [114] – [141], I need only record the comments that “relative financial strength” on the part of a party, and the capacity of a party properly or adequately to fund her or his litigation, are among the factors in the exercise of the Court’s discretion.
102. In the current matter, as is evident from their respective Minutes of Orders sought, both parties are seeking that there be an interim property distribution, but unsurprisingly, in different amounts.
103. In relation to spousal maintenance, the following should be noted, albeit stated summarily in circumstances where the relevant sections (ss.72, 74, and 75(2)) were referred to in the written submissions recorded earlier in these reasons:
     1. The Full Court in Mitchell v Mitchell set out relevant principle, including whether the Applicant is unable to support herself or himself adequately by reference to the matters set out in s.72(a) – (c);^[15]
     2. “adequately” is not to be decided by reference to any fixed or absolute standard but rather by reference to the matters set out in s.75(2);^[16]
     100. for current purposes, it is important to record that, following a question from the Court during the hearing, the Husband readily acknowledged the Wife’s financial “need”, thereby precluding or obviating an examination of the so-called “thresh-hold issue”; and
     4. There must also be some assessment of the “capacity to meet an Order for spousal maintenance, which is not confined to income”.^[17] The issue of “capacity” was inferentially mentioned in the Husband’s submissions by reference to the other family expenses he is currently paying (child support, school fees, hospital and medical benefits insurance, and family therapy). There was no specific discussion of actual “capacity.” The Wife’s submissions, even in extenso, only made a passing reference to this factor; there was no actual discussion of it. Thus, on this and a few other matters, notwithstanding the amounts paid to lawyers, the Court must make up for such deficiencies, or perhaps better described as lacunae.
104. In passing, with no overt criticism intended, it is a tad curious that, for everything that has been spent and argued, in no submissions – written or oral – was there any reference to the latest comments about spousal maintenance by the High Court in Hall v Hall.^[18] In my view, this was both surprising and somewhat alarming – notably that experienced lawyers on all sides did not consider, even in passing, it notable to record even a reference to what the High Court has most recently said on the subject so earnestly contested.

Consideration and disposition - parenting

105. In relation to parenting matters, I note the following.
106. First, the Court has the singular benefit, in an interim stage of the proceedings, of a full, indeed an extensive, Family Report prepared by Ms B. The circumstances why this is so have been set out earlier in these reasons and are otherwise well known.
107. Secondly, Ms B was the joint expert chosen by the parties. Among her recommendations was that the parties, and the children, attend family therapy. That therapy has commenced. All of this is in circumstances where: (a) Orders were made by consent last year, (b) those Orders have largely not been complied with, resulting in (c) the girls having spent very little time with the Father. A reasonable inference (I put it no higher), particularly in the light of the many comments by the Family Consultant in her Report notably recording comments by the children, is that the girls have been actively embroiled in the detail of this dispute to a concerning degree. Because of the relative absence of the Father from the lives of the girls, the only logical source of the girls’ information, due to inadvertence, negligence or otherwise, is, more likely than not, the Mother. Following the Orders more recently made by consent at the interim hearing prohibiting both parties from discussing any aspect of the proceedings with the children (and a standard non-denigration Order), it remains to be seen if there is any reduction in hostilities and a greater protection of the children from the ongoing and adverse impact of the litigation.
108. Thirdly, it was canvassed briefly at the interim hearing that a preliminary, sort of ice-breaking way of moving forward, was perhaps to have regular, (e.g. every fortnight), afternoon or evening time between the Father and the girls with another, mutually agreed, member of the family or other close friend present. Desirably but not necessarily (it is only a suggestion), it would be someone closer to the girls’ age, but it would certainly need to be someone the girls trust. It is a bridge-building exercise. Assuming that such a course goes reasonably well, perhaps for three months, the consent Orders made last year, tempered by the recommendations of the Family Consultant, could then actually begin. This would also be in circumstances where the “weight” the Mother feels from lack of financial resources has been reasonably alleviated pursuant to the Orders that are made today.
109. Fourthly, all of this is to say that, without making any finding of course, a significant part of the evidence suggests that it is the children, rather than the parents, who are (so to speak) “driving the parenting bus”, and doing so without much adult supervision (or other adult guide) and without any road-map to guide whatever might be their ultimate destination. Some of these characteristics are mentioned in the Family Report, notably the lack of parental guidance or boundaries in the Mother’s residence, which is to be contrasted to the Father’s more structured approach to parenting, based on past experience but of little recent import. As the saying goes: “something’s got to give”, in the sense that some more order, predictability, stability, protection, and much else, needs to be brought into the lives of all but especially the children.
110. At any final hearing, these matters may ultimately feed into a consideration of issues of “risk” (actual or potential) under s.60CC(2) and s.60CC(3) in making Orders that are in the children’s best interests, including their primary residence. One scenario, for example, could be that if, after all the evidence is tested (including the cross examination of both parties, among others), the Court forms the view that the children will be better protected from being embroiled in all aspects of the dispute if there was a change in residence to the Father. I stress that such is just a scenario, among many others, which is likely to be canvassed at any final hearing.
111. Indeed, in terms of any “views” recently expressed by the children (as per s.60CC(3)(a)), based on what is in the Family Report, as well as in the documents in the respective tender bundles (and attached to the parties’ Affidavits), the Court should be very circumspect about giving them much weight at all because of the enmeshment and/or involvement of the children in the proceedings. Subject to what is said below, similar evidentiary considerations inform, to varying degrees, the considerations in sub-paragraphs (b), (c), (ca), (f) and (i).
112. In relation to the latter considerations regarding parenting specifically (e.g. spend time with, participation in decision-making, fulfilling parental obligations – financial, emotional and the like – attitude towards responsibilities of parenthood), such matters are generally traversed in the Family Report. My comment and observations throughout these reasons inform these considerations, notably: (a) the financial support of the Father in the payment of child support, health insurance, school fees, and family therapy; (b) the emotional support by the Mother; (c) the divergent parenting styles and approaches of the parties; (d) the apparent estrangement of the girls from the Father; (e) the information-sharing with the girls by the Mother; and (f) the ongoing difficulties in communication between (i) the parents, and (ii) the Father and the girls. These observations all tell a tale of stresses and strains at multiple levels.
113. Significant, too, obviously are the Mother’s allegations against the Father of (a) controlling behaviour during, and post, the relationship, and (b) sexual assault. These allegations in particular are strongly denied.
114. It is important, more generally, to note the following matters:
     1. Notwithstanding what is in the Family Report (and other places) the Mother denies sharing information (inappropriate or otherwise) with the children;
     2. It is the case, as submitted by the ICL, that recommendations have been made in the Family Report, which is a forensic Report, as opposed to a therapeutic Report. The therapeutic recommendations made in the Family Report are being attended to in the family therapy that is now underway. Subject to Court Order, it is not for the therapist effectively to undertake and review the recommendations of Ms B, and then make further, possibly different, recommendations. The family therapist is not an alternative expert. This said, the therapist can, and will be expected, to give feed-back to the parents, and presumably to the ICL, regarding the progress (or otherwise) being made. Moreover, by definition, the therapy sessions are meant to be confidential;
     100. Of particular concern, which is raised in some of the documents from the school in the Father’s tender bundle, the children have been regularly absent from school, and or have regularly left school early. If one child leaves, so too does the other. These matters have been on the Mother’s watch, so to speak, certainly it seems since mid-2018. Whatever the reason(s), this is a significantly concerning aspect of the matter that has not received sufficient attention;
     4. Also of particular concern are the following matters that are quite plainly set out in material included in the Father’s tender bundle: (i) the Mother’s circulation of parts of the Family Report, contrary to the Act, to members of the school staff, and (ii) generally embroiling, and soliciting information from, the school for the purposes of the current litigation;
     5. In relation to parenting generally, the Mother simply and only sought that the matter be adjourned to allow the therapy to progress, saying in submissions that circumstances had changed such that she no longer agrees with the Consent Orders of August 2019. She also indicated her disagreement with unspecified parts of the Family Report but otherwise made no submissions, or relevantly referred to any principle, regarding either its reception, or the Court’s consideration of, or reliance upon, it;
     6. In addition to these comments, observations and reasons, I accept and adopt the submissions by the ICL. It is imperative that the girls spend regular, consistent time with their Father. The only qualification I make to the Orders sought by the ICL, which I support, is that they not come into effect until what I will call the “preliminary therapeutic step” of the children, the Father and an agreed third party meeting/spending time with each other, every fortnight. The venue is to be agreed; I suggest that the first three times not be at the Father’s residence but on neutral ground. As indicated above, this preliminary process of “re-introduction and re-orientation” is to take place over three months; this would provide for a total of six occasions of the girls spending time with their Father, “facilitated/supported” by a mutually agreed third party;
     7. It is requested that prior to this process commencing, the ICL meet with the girls and outline to them the Court’s decisions and Orders. I will leave the ICL to determine what she also informs them about the Court’s yet to be concluded views regarding the competing claims made by each of the parties. It is imperative, however, that the girls be informed firmly that their parents have agreed not to discuss anything with them regarding this litigation, and that they will not speak in any derogatory way about either parent. As the ICL thinks fit, it would also be important, in my view, to inform the girls of the range of options the Court has available to it, subject to consideration of all the evidence, regarding their living and time with arrangements;
     8. In particular, the Court requests the ICL inform the girls that the Court considers Y’s comments, recorded at par.121 of the Family Report, to be very important. These relate to “everyone deserving a second chance.” Both parents, and the girls themselves, in my firm view, deserve a second chance. The question is whether, and how, the parents and the girls will give each other (and themselves) the opportunity to take up this “second chance”, or will it be squandered and the matter continue to exhaust everyone (financially and otherwise), except the lawyers; and
     9. At the end of the re-orientation period, the Court further requests that the ICL meet with the children to ascertain any relevant “views”, which are to be conveyed to the parents. Subject to the ICL’s assessment, the matter may return to the Court for further directions.

Consideration and disposition – property

115. In relation to interim property distribution, given that (a) both parties seek such “relief”, but (b) differ only as to amount, it is to the latter that the following summary remarks are directed, obviously in the light of the principles outlined earlier in these reasons.
116. The Wife primarily seeks a distribution in her favour of $800,000. The Husband seeks that the Wife receive $300,000, and he receive $100,000.
117. In my view, having due regard to (a) the circumstances of the parties, and (b) the principles referred to in Strahan set out above, in my view the Wife should receive by way of interim property distribution $450,000 and the Husband $80,000. Should it be relevant, the Wife’s amount is more than five times what the Husband is to receive. In her somewhat straitened circumstances, which are clearly set out in her Financial Statement (accepting that some of her assertions are somewhat surprising, shall we say, such as spending $5 per week on herself) the amount now ordered to be made available to her should be more than adequate to cover a wide range of situations and circumstances about which she has not unreasonably complained in her Affidavit material. I might add for completeness that, even had the Husband not made the concession (which again I note was properly and readily made), the impecuniosity and general financial difficulties of the Wife were readily apparent from her Financial Statement. Her financial and family circumstances, in my view, clearly warrant a significant interim distribution of funds. They do not, however, at this stage, warrant the virtual consumption of all of the funds from the proceeds of sale of the former marital residence.
118. As an observation only, her desire to purchase a four bedroom residence, while understandable, might have to be slightly re-appraised or tempered to suit her actual circumstances. A bedroom for visitors is understandable. However, until matters are clearer than they are at the moment in relation to both property and parenting matters, I suggest (nothing more) that the parties (including the children) need to “trim their sails” or “cut their cloth” somewhat to suit the times. Perhaps such comments might be added to the ICL’s list of matters to discuss with the children, including that the decision is the Court’s, not the Father’s, regarding how much is immediately distributed to the parents. This is rather important given that the girls have, on their own account to the Family Consultant, regularly referred to the financial plight of their Mother and their own financial circumstances (e.g. whether their school fees would continue to be paid) as a result, allegedly, of their Father’s actions. The reality, however, seems to be rather different to the often-times jaundiced view of things by the girls. For example, I do not understand there to have been any actual denial by the Father to continue to pay the girls’ school fees, or child support, or health care costs, or family therapy.
119. In relation to the spousal maintenance Application, likewise I note the following, without repeating in detail (a) the factual circumstances previously outlined, (b) the outline of principle set out earlier in these reasons, and (c) submissions of the parties. I recall however that the Husband readily and properly conceded the Wife’s “need.”^[19]
120. The Husband confirmed that he pays child support ($684 per week) and the children’s school fees ($400 per week), and will continue to do so. He contended that he cannot afford to pay any spousal maintenance. He is also paying for the family therapy and health insurance.
121. According to his latest Financial Statement (filed 29^th April 2020), his weekly income is $4,763, while his weekly expenses are $6,274. Clearly, on the evidence of these figures, the Husband has no relevant capacity to pay spousal maintenance. There was surprisingly little discussion by the Wife’s Senior Counsel about this basic evidence from the Husband’s Financial Statement. But this is not the end of the story on this Application, notwithstanding that nothing – regrettably – was submitted by way of alternative arguments, from either party. More’s the pity, for reasons already remarked, including that so much has been expended on legal fees. Family law is pre-eminently about “problem solving”, even if it is so often left to the Court to come up with solutions, as is the case here. Indeed, given the large fees already expended (or incurred), it is unfortunate, concerning, and surprising, that some alternative solutions, as well as basic references (e.g. Hall), were not raised or even noted.
122. I note the following matters (and more, such as instruction) that lead to a solution.
123. First, in Hall v Hall (noted above)^[20], the High Court said, or perhaps reminded all, at [8] (internal citations omitted):
     • Unlike a court exercising the power to make an urgent order conferred by s.77, a court exercising the power to make an interim order under s.74(1) must be satisfied of the threshold requirement in s.72(1) and must have regard to any matter referred to in s.75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s.74(1) of the ordinary standard of proof in a civil proceeding now set out in s.140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s.74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s.72(1) is met having regard to any relevant matter referred to in s.75(2).
124. In the Full Court decision of Maroney & Maroney, at [56], the Court said (Coleman J sitting as a single judge of Appeal) (emphasis added):^[21]
     • To the extent that it might be asserted on behalf of the husband that the learned Federal Magistrate was precluded from making an order which, on the evidence before him, could only be satisfied by borrowing money or realising capital, such challenge cannot succeed. The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.
125. Finally, in the decision of Rankin & Rankin, the Full Court allowed an appeal specifically because the trial Judge did not take into account, for the purposes of “capacity to pay”, the payment of things like child support and school fees.^[22] Such is obviously the case here.
126. In the light of the facts of the current matter, and in the light of the authorities to which I have referred, in my view the evidence confirms that the Husband does not have the relevant capacity from his salary to pay spousal maintenance, given his other expenses, including payments made weekly for child support, health insurance and school fees.
127. In my view, however, the Husband having conceded the Wife’s relevant “need”, she is entitled to payment of spousal maintenance. The only question therefore is how such a payment might be made. In all of the circumstances, and obviously on an interim basis, there shall be an Order for spousal maintenance in the lump sum of $15,600, which approximates to $300 per week. This sum of $15,600 shall be paid out of the capital sum currently held in a controlled monies account, and is necessarily in addition to the interim property distribution of $450,000 to be paid to the Wife.
128. The balance of the funds currently held in the said account shall be invested as agreed in writing between the parties and their lawyers within 7 days of the date of these Orders, noting the Husband’s [untested] evidence of advice earlier given about investment options for the proceeds of sale. The agreement regarding the further investment of the remainder of the proceeds of sale shall also be notified to the Court within 7 days.
129. It only remains to lament, not for the first time but in an attempt to drive the point home to the parties, (a) how much has been expended in every sense on the litigation so far, and (b) how much was spent in particular in relation to the interim Application and the wait for these lengthy reasons (not only the parents dread what might be in store for everyone if the matter goes to a final hearing). As already stated, family law, in parenting and property, is pre-eminently about problem-solving. Even in what appears to be the most dire of circumstances (which I do not suggest is an apt description of the present matter), creative and committed individuals (parties and lawyers) are almost always able to craft solutions to the most intransigent, seemingly intractable, and delicate difficulties. Usually, it only needs the willingness and the wherewithal to try. We shall of course see if creativity and experience win out over all other manner of human frailty, and the never-ending cost of litigation.
130. One final question for the parties to ponder: imagine what it would be like to be free of this contest and free of the Court system? Now that is something worth considering. As well, the parties have the capacity to resolve the matter, whatever has gone on in the past. The resolution by the parties of the dispute will always be a better and longer-lasting “fix” than having the Court impose a result, which is likely (but certainly not calculated to do so) to satisfy neither of them.
131. How might this much more immediate solution occur? Quite easily and readily of course. Rule 7 of the Australian Solicitors’ Conduct Rules, 2015, issued by the Law Council of Australia, provides as follows (emphasis added):
     • A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.
     • 7.2 A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the matter.
132. Consistent with this professional “rule” is the provision of advice, for example, for the parties to attend arbitration rather than to go through the public costly, long-delayed and often in many ways humiliating exercise of litigation. Arbitration of course is conducted in private. Parties effectively can “jump the litigation queue” by engaging an arbitrator. If an arbitral award is made, it can be registered, and enforced, by the Court.
133. It would be remarkable if advice about arbitration was not given to the parties early on in the contest.
134. In this matter, the benefits of such a course are, I suggest, patent. For example, new trial dates will now almost certainly not be available for many months into next year. Even if, for example, the family therapy proceeds for perhaps another three months, an arbitration could be held, say in four or five months’ time and a decision in a matter of weeks. Whenever a trial is held in the Court, regrettably it will be still quite some months before a judgment issues because of the lack of resources available to the Court (primarily “time”) and the constant demand on them by other litigants.
135. An arbitration will almost certainly not only be much quicker, it will very likely (or should) be cheaper, especially with the highly experienced lawyers involved. Imagine what a Christmas present to everyone, especially the girls, to be out of the litigious contest! The parties might also, for example, agree to have only the property side of things arbitrated. This alone would relieve much pressure.
136. A further cost saving is that if an arbitration was held regarding the parenting side of things, no new family report would likely be required, or at best, a short update after the finish of therapy. However, if a trial is to be held, perhaps some time next year, it is likely that another, and costly, full report would be required.
137. Literally, the savings and opportunities for resolution are almost endless. It only requires the will and wherewithal to be channelled into it. Somewhat speculatively, given what has been spent thus far, it is perhaps likely that a similar (or even larger) amount will be expended if the matter goes to trial, and obviously still more if any appeals follow. At worst, if half the same sum was spent on the arbitration, it would still save each the parties at least $50,000, but more likely significantly more. As always, the litigious ball is in their court and how much they want to keep spending on legal fees, thereby reducing the ultimate property pool available for distribution, and all other associated costs – emotional, psychological and much more besides.
138. Within 14 days of the date of these reasons, the parties are to advise the Court whether they will attend arbitration, and if so an outline of time-frame and the like, or whether the matter will join the queue for matters awaiting the allocation of a final hearing date. It is widely known in commercial circles and beyond that multi-billion dollar international disputes are routinely resolved by arbitration. It is curious, if not regrettable, why more family law matters – whatever their size and sensitivities – do not use the private, more discreet, invariably less costly, path of arbitration.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Neville



Associate:



Date: 7 July 2020

^[1] X was born in 2007, and Y in 2009.

^[2] According to his Financial Statement, filed 29^th April 2020, the Husband has $1,120, 934.00 in superannuation.

^[3] See Anison & Anison (2019) 59 Fam LR 581.

^[4] See Practice Direction No. 2 of 2017 – Interim Family Law Proceedings. In particular, see pars.11 – 13 regarding “failure to comply”, which includes possible Orders in relation to costs and vacating the interim hearing.

^[5] In this regard, see the comments by French CJ in AON Risk Services Limited v Australian National University (2009) 239 CLR 175 at [5] and [23] – [30].

^[6] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303.

^[7] I note the Mother’s further account about such matters, including her lack of realisation of what was occurring, at par.90(d) of her August 2019 Affidavit.

^[8] Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 at [67] – [68].

^[9] Brown J’s remarks in this regard were endorsed by the Full Court in McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].

^[10] AMS v AIF (1999) 199 CLR 160.

^[11] AMS v AIF 199 CLR at p.211 [150].

^[12] AMS v AIF 199 CLR at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.

^[13] In relation to the application of the relevant “considerations” in s.60CC, see the discussion by the Full Court in Slater v Light [2011] FamCAFC 1; (2011) 45 Fam LR 41, and more recently in Beckham & Desprez [2015] FamCAFC 247; (2017) 55 Fam LR 310.

^[14] Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166; (2010) 241 FLR 1; (2010) 42 Fam LR 203.

^[15] Mitchell v Mitchell [1995] FamCA 32; (1995) 19 Fam LR 44 at 58 – 59. See also the discussion by the Full Court in DJM v JLM [1998] FamCA 97; (1998) 23 Fam LR 396 especially at 423 ff regarding, among other things, the assessment of the Respondent’s capacity to pay.

^[16] See further the Full Court decision in K v P [2008] FamCAFC 23; (2008) 216 FLR 445 at [24].

^[17] In this regard, see the recent Full Court judgment of Ryan J, sitting as a single judge of Appeal, in Elei & Dodt [2018] FamCAFC 92; (2018) FLC 93-841 and the cases cited therein.

^[18] Hall v Hall [2016] HCA 23; (2016) 257 CLR 490 at [3] – [5].

^[19] Generally, see also the recent discussion by the Full Court (Aldridge J sitting as a single Judge of Appeal, in which the Wife’s Senior Counsel in the current matter fortuitously appeared before his Honour) in Garston & Yeo (No.2) [2019] FamCAFC 139.

^[20] [2016] HCA 23; (2016) 257 CLR 490.

^[21] Maroney & Maroney [2009] FamCAFC 45.

^[22] Rankin & Rankin [2017] FamCAFC 29; (2017) FLC 93-766 at [79].