ALANIS & VAMSHI

FAMILY COURT OF AUSTRALIA

ALANIS & VAMSHI

[2020] FamCA 596

FAMILY LAW – CHILDREN – With whom children spend time – Where the parties remained living under the same roof upon separation – Where at the time of the hearing the father was due to move out of the former matrimonial home – Where the father seeks that the children spend overnight time in his care – Where the mother seeks that the father spend time with the children in the day only – Where the mother makes numerous allegations against the father – Where that evidence is untested at an interim stage – Where the father is yet to respond to those allegations – Where there are no concerns for the children’s safety in the mother’s care – Where a cautious approach favours the mother’s orders – Orders for the children to spend day only time with the father, unless otherwise agreed.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the mother seeks the payment of interim spousal maintenance and the outgoings for the household by the father – Where the father opposes the mother’s application – Where the father asserts that the mother has unexercised earning capacity and that in any event, he does not have the capacity to reasonably meet the mother’s claim – No basis for the Court to find that the mother has unexercised earning capacity – Court satisfied that the mother has demonstrated a need for the support claimed – Court satisfied that the father can meet payments to the mother in the amount sought by her – Order for interim spousal maintenance – Order for the outgoings of the mother’s household to be paid from joint funds.

FAMILY LAW – PROPERTY – Interim distribution – Where the mother seeks a payment of $100,000 – Where the father seeks that the wife be paid $20,000 from joint funds and that she receive half of a discretionary bonus he may receive – Orders made in terms of those sought by the father.

FAMILY LAW – CHILD SUPPORT – Other than by periodic payments to the mother – Where the mother seeks that the father make direct payments for expenses relating to the children, such as school fees and medical expenses – Where the father concedes that some of those payments should be made but that they should come from joint funds – Orders for the payments to be made from joint funds.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 72, 74, 75(2), 79
Child Support (Assessment) Act 1989 (Cth) ss 114, 117

Champness & Hanson (2009) FLC 93-407
Dieter & Dieter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92 378
Hickey & Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
McCall & Clark (2009) FLC 93-405
Redman and Redman (1987) FLC 91-805
SS & AH [2010] FamCAFC 13
Strahan & Strahan (2011) FLC 93-466

APPLICANT:

Ms Alanis

RESPONDENT:

Mr Vamshi

FILE NUMBER:

SYC

3871

2019

DATE DELIVERED:

23 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

9 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson

Orders

Pending further order and unless the parties otherwise agree in writing, X born … 2013 and Y born … 2016 (“the children”) shall spend time with the father:
(a)each Wednesday afternoon from the conclusion of school (or 3.00 pm if a non-school day) to 7.00 pm commencing on the first Wednesday immediately following the date of the making of this order;
(b)each alternate Saturday from 10.00 am to 6.00 pm commencing on the second Saturday immediately following the date of the making of this order;
(c)on Father’s Day and the father’s birthday, from 10.00 am to 5.00 pm;
(d)      from 10.00 am to 6.00 pm on Christmas Day in each year;
(e)      on each of the children’s birthdays:
(i)       if it is a school day, from the conclusion of school to 6.00 pm; or
(ii)      if it is not a school day, from 10.00am to 2.00pm.
Pending further order and unless the parties otherwise agree in writing, the children shall live with the mother at all other times.
The parenting orders contained herein are in addition to those included in Order 1 made on 9 June 2020.
Pending further order of the Court the father shall pay to the mother, or as she directs, the sum of $578 per week by way of interim spousal maintenance.
Pending further order of the Court the parties shall do all things and sign all documents to cause the following outgoings to be paid from the joint B Bank account #…99, as and when those outgoings fall due:
(a)all principal and interest payments in respect of all loans secured by the registered mortgage secured on the title of the Suburb C property;
(b)water and council rates in relation to the Suburb C property;
(c)electricity, gas, telephone, internet and Netflix supplied to the Suburb C property;
(d)home and contents insurance in relation to the Suburb C property; and
(e)health insurance for the mother at the current level of cover.
By way of interim property settlement:
(a)the husband shall do all acts and things necessary to cause to be paid to the wife, as soon as practicable, 50 per cent of any net payment received by him in accordance with Clause 7.9 of his Employment Agreement with D Company dated 13 March 2020, and
(b)within seven days from the date of these Orders the parties shall do all things and sign all documents necessary to cause the sum of $20,000 to be paid to the mother from their joint B Bank account #…99.
Pursuant to s 124 of the Child Support (Assessment) Act1989 (Cth), pending further order, the parties shall do all things and sign all documents necessary to cause the following payments to be made from their joint B Bank account #…99:
(a)within seven days of receipt, the amount specified in any tax invoice issued by H School in respect of the education of the child, X or by F School in respect of the education of the child, Y;
(b)any liabilities for the extra-curricular and co-curricular activities for the children, provided such expense has been agreed to in writing prior to being incurred;
(c)any fees for before and after school care;
(d)fees for agreed private tuition for either of the children as required from time to time; and
(e)any medical expenses for the children not covered by the parties’ private health insurance or Medicare, including the costs of emergency and agreed surgery.
The payments pursuant to Order 7 shall not be credited against any assessment of periodic child support that issues from time to time.
Otherwise the applications of the parties for interim orders are dismissed.
Leave is granted to the parties to restore the proceedings within seven days in respect of the wording of the orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alanis & Vamshi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3811 of 2019

Ms Alanis

Applicant

And

Mr Vamshi

Respondent

REASONS FOR JUDGMENT

Introduction

These are interlocutory proceedings in the context of proceedings for parenting and property settlement between Ms Alanis (“the mother”) and Mr Vamshi (“the father”). The interim proceedings were heard on 9 June 2020. Some of the issues reflected in each party’s respective Application and Response were resolved by agreement. Judgment was reserved on the contested issues. What follows are the reasons for the orders set out above. The parenting proceedings relate to two children: X and Y, who are seven and four years of age respectively. The substance of the interim parenting dispute is whether the father’s time with the children, upon him vacating the former matrimonial home, should be day only or involve overnight time.
Each of the parties has proposals for interim financial arrangements.
The financial issues involve interim spousal maintenance, interim property settlement and interim child support matters.

Applications

By her Application in a Case filed 5 May 2020 the mother seeks the following orders in relation to parenting:
1.The time for service of this Application on the Husband be abridged and the Wife be granted leave to serve this Application on the Husband at short notice.
2.This application be listed for hearing on an urgent basis.
THAT PENDING FURTHER ORDER
PARENTING
3.That the Husband and Wife will have equal shared parental responsibility in relation to X born in 2013 and Y born in 2016 (“the Children”).
4.That the Husband and the Wife will each do all acts an things, sign all documents necessary and attend on such dates and at such time as directed by the family therapist practitioner for family therapy with a practitioner agreed between them and failing agreement nominated by the Court (“the family therapist”) to:
4.1improving the Husband and Wife’s capacity to co-parent including shared parental responsibility, communicate, manage conflict, promote and facilitate a positive relationship between the children and the other parent;
4.2improving the relationship between the Husband and the children;
4.3increasing the time the children spend with the Husband;
4.4Improving their parenting relationship;
4.5improve such other matters as the family therapist considers appropriate,
and
4.6within 14 days, each will attend with their General Practitioner to obtain a referral and Medicare subsidised GP Health Care Plan referring them to the family therapist for family therapy;
4.7within 7 days of obtaining the referral pursuant to Clause 4.1, each will each contact he family therapist to make their initial appointment with the family therapist;
4.8in the event that the family therapist requests the children’s attendance at family therapy, whoever of the Husband and Wife the children are living with at that time, will take all steps necessary to facilitate the children’s attendance at family therapy, at such times nominated by the family therapist;
4.9the husband will pay all costs of all joint sessions and all of the children’s sessions with the family therapist, and each parent will be solely responsible for the costs of their individual sessions with the family therapist; and
4.10each will continue with family therapy for as long as is recommended by the family therapist.
5.The Wife and the Husband (and any Independent Childrens Lawyer) are restrained from:
5.1seeking to obtain a written report from the family therapist with respect to family therapy;
5.2issuing a subpoena for the family therapist to give evidence in the proceedings or for the production of any of the family therapist’s records; and
5.3introducing into evidence any matter that occurred during the family therapy.
6.That provided the Family Therapy is taking place as contemplated by Clause 4, the children will spend time with the Husband as follows:
6.1each Wednesday afternoon from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm commencing on the first Wednesday immediately following the date of the making of this order;
6.2each alternate Saturday from 10:00am to 6:00pm commencing on the second Saturday immediately following the date of the making of this order;
6.3on Father’s Day and the Husband’s birthday, from 10:00am to 5:00pm;
6.4from 10:00am to 6:00pm on Christmas Day in each year;
6.5on each of the children’s birthdays:
6.5.1if it is a school day, from the conclusion of school to 6.00pm
6.5.2if it is not a school day, from 10.00am to 2.00pm; and
6.6as otherwise agreed between the parents in writing.
7.The children will live with the Wife at all times they do not spend with the father pursuant to Clause 6.
8.That the Husband and the Wife are each permitted to attend any school function or activity involving any of the children even if the function or activity occurs at a time when the children are living with the other parent.
9.That the Husband and the Wife are each permitted to attend any sporting activity or extracurricular activity in which the children are participating outside of school hours even if the function or activity occurs at a time when the children are living with the other parent.
10.To the extent it is necessary to do so, the Husband and the Wife will give their consent and authority to the school and/or child care facility at which the children attend to:
10.1enable the other parent to obtain copies from the school and/or child care facility of school reports, notes, newsletters (which are ordinarily provided to parents) at that parent’s cost; and
10.2receive information concerning the children’s attendance and progress at school and/or child care facility.
INTERIM FINANCIAL
11.That pending further order:
11.1The as between the Husband and the Wife, the Wife be solely entitled to exclusive occupation of the property situate at and known as G Street, Suburb C in the states of New South Wales (“the Suburb C property”).
11.2The Husband will do all acts and things necessary to provide the Wife with vacant possession of the Suburb C property within 24 hours of the making of these Orders.
11.3That by way of interim spousal maintenance the Husband pay:
11.3.1to the Applicant the sum of ~~$1,148~~ $578[1] per week, such sum to be paid monthly and in advance into a bank account nominated by the Wife in writing, with the first payment to be made within 2 days of the date of the making of this Order and thereafter monthly; and
[1] The mother’s Case Outline puts the quantum of maintenance sought at $578 per week.
11.3.2to the supplier of the relevant goods or service, as and when they fall due:
(a)all principal and interest payments in respect of all loans secured by the registered mortgage secured on the title of the Suburb C Property;
(b)Water and Council rates in relation to the Suburb C Property;
(c)Electricity, gas, telephone, internet and Netflix supplied to the Suburb C Property;
(d)Home and contents insurance in relation to the Suburb C Property;
(e)Health insurance for the wife at the current level of cover;
12.That, within seven days of the date of the making of this Order the Applicant and the Respondent will do all acts and things and sign all documents necessary to pay to the Applicant the sum of $100,000.
CHILD SUPPORT
13.That pending further order, pursuant to Section 124 of the Child Support (Assessment) Act 1989, the husband will pay to the relevant supplier of goods and services as and well they fall due for the Children all costs of the following expenses:
13.1Private school fees and associated expenses as invoiced on the school account for each of the children;
13.2Childcare fees, including before and after school care fees, as required from time to time for each of the children;
13.3Private tuition for either of the children as required from time to time, subject to agreement between the parties in writing of the requirement for such tuition;
13.4Co-curricular activities for either of the children, including the activities presently undertaken by the children and any further activities as agreed between the parties;
13.5Private health insurance for each of the children as and when it falls due at the same level as it presently exists;
13.6Medical expenses for the children not covered by any private health insurance or Medicare, including surgery (subject to agreement between the parties as to surgery unless in an emergency)’
And the same is not to be credited against any assessment of periodical child support.
OTHER
14.Pursuant to Section 106A of the Act, in the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of a Court of competent jurisdiction in relation to the Act is appointed to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.
15.Pursuant to Section 117(2) of the Act:
15.1in respect of any action taken pursuant to Clause 14, the defaulting paring will pay the other party’s costs of and incidental to that action as agreed and failing agreement as assessed; and
15.2the Husband will pay the costs of the Wife of an incidental to this Application.
(As per the original)
The father sought orders in accordance with the following minute of orders:
1.The husband and the wife shall each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children of the marriage, X born in 2013 and Y born in 2016 (“the children”), such major long term issues to include:-
1.1.The children’s education (both current and future); and
1.2.The children’s religious and cultural upbringing; and
1.3.The children’s health; and
1.4.The children’s names; and
1.5.Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent;
and the parties shall consult with each other prior to making any such decisions.
2.The husband and the wife shall each individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the children on a day to day basis during the periods when the children are in their care respectively.
3.The wife be restrained from:
3.1causing the children to have any surname other than “Alanis-Vamshi” and upon completion of any forms or in making reference to the children, the wife shall ensure that their said surname is expressed without alteration, omission or amendment; and
3.2completing any forms which record the children’s ethnic traditions as anything other than Australian, Country P and Country Q.
4.The children shall live with the wife but otherwise live with the husband as follows:-
4.1On Friday 12 June 2020 from the conclusion of school until 7.30pm.
4.2On Sunday 14 June 2020 from 9.00am to 7.30pm.
4.3As from 17 June 2020 until 21 July 2020 in fortnightly cycles as follows:-
4.3.1In week one of the fortnightly cycle from immediately after school Wednesday (or 3:00pm in the event such Wednesday is not a school day) until 7.00pm that night;
4.3.2In week one of the fortnightly cycle from immediately after school on Friday (or 3:00pm in the event such Friday is not a school day) until the commencement of school on Monday (or 9:00am in the event such Monday is not a school day) ; and
4.3.3In week two of the fortnightly cycle from immediately after school Wednesday (or 3:00pm in the event such Wednesday is not a school day) until the commencement of school on Thursday morning (or 9:00am in the event such Thursday is not a school day).
4.4As from 22 July 2020 and thereafter in fortnightly cycles as follows:-
4.4.1 In week one of the fortnightly cycle from immediately after school Wednesday (or 3:00pm in the event such Wednesday is not a school day) until the commencement of school on Thursday morning (or 9:00am in the event such Thursday is not a school day);
4.4.2In week one of the fortnightly cycle from immediately after school on Friday (or 3:00pm in the event such Friday is not a school day) until the commencement of school on Monday (or 9:00am in the event such Monday is not a school day) ; and
4.4.3In week two of the fortnightly cycle from immediately after school Wednesday (or 3:00pm in the event such Wednesday is not a school day) until the commencement of school on Thursday morning (or 9:00am in the event such Thursday is not a school day).
4.5For the purposes of the 2020/2021 Christmas school holiday and subject to the specific arrangements surrounding Christmas Day as set out in Order 4.5.2. hereof:-
4.5.1Between 9:00am on 21 December 2020 to 12:00pm on 23 December 2020;
4.5.2Between 3.00pm on 25 December 2020 to 12.00pm on 28 December 2020;
4.5.3Between 9.00am on 31 December 2020 to 12.00pm on 3 January 2021; and
4.5.4For the period from 6 January 2021 to 31 January 2021, from 1.00pm Wednesday to 9.00am Sunday each week.
4.6For one-half of the school holiday periods as agreed in writing and failing agreement as to which half, for the first half in 2020 and every other year ending with an even number, and for the second half in 2021 and every other year ending with an odd number.
4.7For the purposes of Christmas in 2022 and thereafter:-
4.7.1The children will live with the wife from 9:00am on Christmas Eve Day until 3:00pm on Christmas Day each year.
4.7.2The children will live with the husband from 3:00pm on Christmas Day until 5:00pm on Boxing Day each year.
4.8On 2 May each year as follows:-
4.8.1In the event that such date coincides with a school day, from immediately after school until the commencement of school the following day if it is a school day or 9:00am if it is a non-school day.
4.8.2In the event that such date coincides with a non-school day, from 9:00am until the commencement of school the following day if it is a school day or 9:00am if it is a non-school day.
4.9On both of 22 March and 17 March each year (in the event that the children are otherwise with the wife) as follows:-
4.9.1In the event that such date coincides with a school day from immediately after school until 7:30pm.
4.9.2In the event that such date coincides with a non-school day from 2.30pm until the commencement of school the following day if it is a school day or 9:00am if it is a non-school day.
4.10For the purposes of Easter from 3:00pm on Easter Thursday until 3:00pm on Easter Saturday in 2020 and every other year ending with an even number and from 3:00pm Easter Saturday until 7:30pm Easter Monday in 2021 and every year ending with an odd number.
4.11for the purposes of these Orders school holiday periods are defined as follows:-
4.11.1To commence from 9:00 am on the first day immediately following the last school day of each school term that students are required to attend at the school X attends;
4.11.2
4.11.3Shall be defined to conclude at 7:00 pm on the day immediately preceding the first school day of each new school term that students are required to attend referrable to the school X attends; and
4.11.4Changeover which occurs half-way through any school holiday period shall occur at 7:00 pm on the day in the middle of the first and last day of the relevant school holiday period, and in the event that there are 2 “middle days” changeover shall occur at 7:00 pm on the first of those 2 middle days.
4.12On the occasion of Father’s Day, from 5:00pm on the Saturday of the Father’s Day weekend until 7:30pm on Father’s Day.
4.13 For the purposes of any social events:
4.13.1In the event that such date coincides with a school day from immediately after school until the commencement of school the following day if it is a school day, or 9.00am if it is a non-school day.
4.13.2In the event that such date coincides with a non-school day from midday to 9.00am the next day.
4.14At other times as mutually agreed between the parties in writing.
5.In the event that any of the periods specified in the preceding Orders should coincide with:-
5.1Mother’s Day, then such period shall be suspended to enable the children to spend time with the wife between 5:00pm on the Saturday preceding Mother’s Day until 7:30pm on Mother’s Day.
5.2 On 26 May each year, then such period shall be suspended to enable the children to spend time with the wife in accordance with these Orders.
5.3 On 22 March and 17 March each year if the children are otherwise on those days living with the husband, the children shall spend time with the wife as follows:-
5.3.1In the event that such date falls on a school day, from immediately after school until 7:30pm.
5.3.2In the event that such date falls on a non-school day, from 2:30pm until the commencement of school the following day if it is a school day or 9:00am if it is a non-school day.
5.4For the purposes of Easter from 3:00pm on Easter Thursday until 3:00pm on Easter Saturday in 2021 and every other year ending with an odd number and from 3:00pm Easter Saturday until 7:30pm Easter Monday in 2022 and every year ending in an even number.
6.The husband and the wife shall, within seven days, do all acts and things necessary and sign all documents required to attend upon Ms J of the K Services for the purposes of family therapy with that practitioner, the objective of such therapy to be:-
6.1Improving the husband and the wife's capacity to co-parent, including shared parental responsibility, communication, the management of conflict and the promotion and facilitation of a positive relationship between the children and each of their parents.
6.2Improving the relationship between the husband and the children.
6.3Improving the relationship between the wife and the children.
6.4Focussing upon such other matters as the family therapist considers appropriate.
7.That the husband and the wife implement the preceding Order by:-
7.1Contacting Ms J within seven days of this Order and making an appointment to see her within 14 days thereafter, or as soon as practicable depending upon her availability.
7.2 Facilitating the children attending upon the family therapist in the event that Ms J requests their attendance.
7.3Continue with the family therapy for as long as is recommended by Ms J.
7.4Each paying the costs incurred with Ms J in respect of their individual sessions, but with the husband paying all costs of all joint sessions and all of the children's sessions.
8.The attendances upon the practitioner and compliance with Orders 6 and 7 hereof is not a pre-condition to the children living with each of their parents as otherwise set out in these Orders.
9.The wife and the husband (and any Independent Children's Lawyer) be restrained from:-
9.1Seeking to obtain a written report from Ms J with respect to the family therapy.
9.2Issuing a Subpoena for Ms J to give evidence in the proceedings or for the production of any of Ms J’s records and introducing into evidence any matter that occurred during the family therapy subject only to any matter which constitutes mandatory reporting by Ms J.
10.The mother and the father are to notify the other as soon as possible of any medical emergency, serious injury or illness involving the children.
11.Each party shall provide to the other prior written notification (including by way of sms text or email as soon as the appointment is made) of any treatment options and appointments in relation to the children such that both parties have the opportunity to attend such appointments so as to make informed joint decisions regarding health care, including emotional needs.
12.For the purposes of changeovers, where changeovers do not take place at school, unless otherwise agreed in writing between the parties the father (or his nominee) shall collect the children from the mother’s residence at the commencement of his time with the children and the mother (or her nominee) shall collect the children from the father’s residence at the conclusion of his time with the children
13.Each party shall:-
13.1Not restrict or seek to restrict the access that the other party has to the children’s educational and medical records;
13.2Be at liberty to participate in and attend the children’s school events; and
13.3Communicate to the other party any school or social events which are available to the children as soon as they are notified of such events to ensure that the party with whom the children are spending time coincidentally with such events has at least one week’s notice to make arrangements to attend with the children on each such occasion.
14.Each party shall provide a residential, mailing, email and contact address and contact telephone number to the other party and in the event of changes in any of these, each party shall notify the other in advance or within 24 hours of such change taking place.
15.Both parents shall do all acts and things necessary to ensure that the children continue to hold current Australian Passports from time to time and in respect of such Passports, the husband shall hold the Passport(s) issued in respect of the child Y and the wife shall hold the Passport(s) issued in respect of the child X.
16.Each of the parties shall be permitted to remove one or both of the children of the marriage from the Commonwealth of Australia for the purposes of a holiday provided:-
16.1Such holiday coincides with a school holiday period when the child or children are otherwise in the care of that party.
16.2The holidaying party provides to the other not less than eight weeks written notice of the intention to remove the child or children from the jurisdiction for the purposes of the holiday, at that stage providing:-
16.2.1The itinerary of travel including dates, flights and destinations;
16.2.2A contact telephone number permitting the other party to have telephone contact with the child(ren) on every third day during their absence from the jurisdiction;
16.2.3The destination is a jurisdiction within the Hague Convention on the Civil Aspects of International Child Abduction in force between Australia and relevant reciprocating jurisdictions from time to time;
and upon return of the children to the jurisdiction, the holidaying party shall return to the other party the child’s Passport to be held pursuant to these Orders.
17.That by way of interim alteration of the property interests of the parties, they each do all acts and things necessary within seven days to:-
17.1Cause the sum of $20,000 to be paid to the wife from their joint B Bank account #...69.
17.2Pay their liabilities in relation to the private school fees for the children from their joint B Bank account #…99, such that any tax invoice issued by H School in respect of the education of the child, X, be paid within seven days of it being received by the parties.
17.3Pay their liabilities in relation to the private school fees for the children from their joint B Bank account #…99, such that any tax invoice issued by F School in respect of the education of the child, Y, be paid within seven days of it being received by the parties.
17.4 Pay their liabilities in relation to the extra-curricular and co-curricular activities for the children from their joint B Bank account #...69 provided such expense has been agreed to in writing prior to being incurred.
17.5Pay their liabilities in relation to all principal and interest payments in respect of all loans secured by the registered mortgage secured on the title of G Street, Suburb C ("the home"), as and when it falls due.
17.6Pay their liabilities in relation to Water and Council rates, gas and electricity in relation to the home as and when it falls due.
17.7Pay their liabilities in relation to Home and contents insurance in relation to the home as and when it falls due.
18.That by way of further interim alteration of the property interests of the parties, the husband shall do all acts and things necessary to cause to be paid to the wife 50% of any net payment received by him in accordance with Clause 7.9 of his Employment Agreement with D Company dated 13 March 2020.
19.That within 7 days of these Orders the Wife make available for the collection of the Husband at a time nominated by him the items identified in Annexure B.
20.That the wife's Application for interim spousal maintenance be dismissed.
21.That the wife's Application for interim child support be dismissed.
22.In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to Section 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.
23.That pursuant to Section 117(2) of the Family Law Act in respect of any action taken in accordance with the preceding Order, the defaulting party will pay the other party’s costs of and incidental to that action as agreed and failing agreement as assessed.
24.That each party pay their own costs.

ANNEXURE B
1.3 speakers (1 set) and stands – was bought by Mr Vamshi’s parents as wedding gift
2.Computer – IMAC, keyboard and mouse bought by Mr Vamshi’s parents as a wedding gift
3.Bed – Mr Vamshi’s king bed and bedding (sheets, quilt, pillows, blankets (3), electric blanket etc)
4.Wine decanter – bought by Ms L (Mr Vamshi’s sister)
5.Whiskey decanter – gift bought by Ms Alanis for Mr Vamshi’s 30^th
6.Kitchen aid mixer - Housewarming present from Mr Vamshi’s sister (never used by Ms Alanis)
7.Approximately 15 bottles of Alcohol being half the collection
8.Half the Cookbooks selected by Ms Alanis including the cookbooks bought as gifts by Mr Vamshi’s family for him
9.Wine glasses - set of 4 wine glasses gifted by the S Company to Mr Vamshi as a parting gift after he worked there, Riedel “o” set of 4 gifted to Mr Vamshi by brother in law for attending and participating in their wedding ceremony
10.Beach tent
11.Gorilla step ladder
12. Wine fridge and the wine inside it
13.The children’s English books
14.Children's toys – gifts from Mr Vamshi and Mr Vamshi’s family
15.Blue ride on car gifted by Mr Vamshi’s sister to Y
16.Suitcases – Mr Vamshi’s 3 black hard case suitcases used by him for business travel
17.Heater
18.Gardening equipment many of which given by Mr Vamshi’s parents when they sold their Suburb T home
19.Sony rx100 camera when located
20.Selection of bath towels purchased by Mr Vamshi
21.Mr Vamshi’s boxes of items on level 2 of G Street he bought for his home – contains some kitchen equipment, towels etc
22.Ikea storage unit purchased by Mr Vamshi recently and the contents inside it
23.Painting and a monochrome photograph
24.Plants – 3 standard figs on garage that belong to Mr Vamshi’s parents

Not all of the issues contained in the parties’ minutes of order were addressed during the hearing. For example, I was told that the fact of arrangements for the commencement of family therapy and the conditions under which that would be undertaken were the subject of proposed consent orders under consideration or already made by a registrar. Other issues raised by the parties were the subject or orders the parties asked me to make by consent on the day of the hearing. I have set out below the terms of those orders.

Evidence

The mother relied on:
·Application in a Case filed 5 May 2020;
·Minute of Orders Sought contained in the mother’s Case Outline filed 8 June 2020;
·affidavit of the mother filed 5 May 2020 and exhibits;
·affidavit of the mother filed 5 June 2020; and
·the mother’s Financial Statement filed 5 May 2020.
The father relied on:
·Response to an Application in a Case filed 3 June 2020;
·affidavit of the father filed 3 June 2020;
·the father’s Financial Statement filed 3 June 2020;
·affidavit of Mr M filed 3 June 2020;
·affidavit of Mr N filed 3 June 2020; and
·Child Dispute Conference Memorandum to the Court dated 23 January 2020.

The Hearing

The mother’s Application was filed on 5 May 2020. On 11 May 2020 when both parties were represented, a registrar ordered, among other things, that the father file and serve a Response, a Financial Statement and any relevant affidavit by 4.00 pm on 26 May 2020. The application was listed for hearing before me on 9 June 2020 and on 27 May 2020 for a case management hearing.
The father’s responding material was filed and served on 3 June 2020.
On 9 June 2020 the hearing was conducted by telephone. Each of the parties was represented by Senior Counsel.
At the conclusion of the hearing I made the following orders:
1.By consent, orders are made in the terms of the document titled “Minute of Consent Orders” (Exhibit 1 dated 9 June 2020) as set out hereunder:
1.Pursuant to s 68L of the Family Law Act an Independent Children’s Lawyer be appointed for X born in 2013 and Y born in 2016 (“the children”).
THAT PENDING FURTHER ORDER:
PARENTING
2.The husband and the wife shall each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children, such major long term issues to include:
2.1.The children’s education (both current and future); and
2.2.The children’s religious and cultural upbringing; and
2.3.The children’s health; and
2.4.The children’s names; and
2.5.Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent;
and the parties shall consult with each other prior to making any such decisions.
3.The husband and the wife shall each individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the children on a day to day basis during the periods when the children are in their care respectively.
4.On a without admissions basis, the parties be restrained from:
4.1.causing the children to have any surname other than “Alanis-Vamshi” and upon completion of any forms or in making reference to the children, the wife shall ensure that their said surname is expressed without alteration, omission or amendment; and
4.2.completing any forms which record the children’s ethnic traditions as anything other than Australian, Country P and Country Q.

5.That the Husband and the Wife are each permitted to attend any school function or activity involving any of the children even if the function or activity occurs at a time when the children are living with or spending time with the other parent.
6.That the Husband and the Wife are each permitted to attend any sporting activity or extracurricular activity in which the children are participating outside of school hours even if the function or activity occurs at a time when the children are living with the other parent.
7.To the extent it is necessary to do so, the Husband and the Wife will give their consent and authority to the school and/or child care facility at which the children attend to:
7.1.enable the other parent to obtain copies from the school and/or child care facility of school reports, notes, newsletters (which are ordinarily provided to parents) at that parent’s cost; and
7.2.receive information concerning the children’s attendance and progress at school and/or child care facility.

8.The mother and the father are to notify the other as soon as possible of any medical emergency, serious injury or illness involving the children.
9.Each party shall provide to the other prior written notification (including by way of sms text or email as soon as the appointment is made) of any treatment options and appointments in relation to the children such that both parties have the opportunity to attend such appointments so as to make informed joint decisions regarding health care, including emotional needs.
10.For the purposes of changeovers, where changeovers do not take place at school, unless otherwise agreed in writing between the parties the father (or his nominee) shall collect the children from the mother’s residence at the commencement of his time with the children and the mother (or her nominee) shall collect the children from the father’s residence at the conclusion of his time with the children
11.Each party shall:
11.1.Not restrict or seek to restrict the access that the other party has to the children’s educational and medical records;
11.2.Be at liberty to participate in and attend the children’s school events; and
11.3.Communicate to the other party any school or social events which are available to the children as soon as they are notified of such events to ensure that the party with whom the children are spending time coincidentally with such events has at least one week’s notice to make arrangements to attend with the children on each such occasion.

12.Each party shall provide a residential, mailing, email and contact address and contact telephone number to the other party and in the event of changes in any of these, each party shall notify the other in advance or within 24 hours of such change taking place.
INTERIM FINANCIAL
13.That pending further order:
13.1.The as between the Husband and the Wife, the Wife be solely entitled to exclusive occupation of the property situate at and known as G Street, Suburb C in the states of New South Wales (“the Suburb C Property”).
13.2.The Husband will do all acts and things necessary to provide to the Wife vacant possession of the Suburb C property by 12:00pm on Friday 12 June 2020.
13.3.The wife shall provide to the husband access to the Suburb C Property to have a removalist remove his bed and personal items and other agreed items from the Suburb C Property provided the husband provides her no less than 48 hours notice.

CHILD SUPPORT
14.That pending further order, pursuant to Section 124 of the Child Support (Assessment) Act 1989, the husband will pay private health insurance for each of the children as and when it falls due with R Insurance at Level 3 cover.
OTHER

15.Pursuant to Section 106A of the Act, in the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of a Court of competent jurisdiction in relation to the Act is appointed to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.

2.The living arrangements in respect of the children, upon the father vacating the former matrimonial home at Suburb C, shall be such arrangements as the parties agree upon in writing.
3.In the event that the parties are unable to agree on those arrangements, they have leave to approach my chambers with a proposal and submissions as soon as practicable.

Otherwise, judgment was reserved and the parties were excused on delivery of judgment.

Background Facts

The mother is 43 years of age and the father is 42 years of age. The parties started living together upon marriage in 2011. On the mother’s case, they separated on 17 September 2018. They have continued to live under one roof to the date of the hearing.
The parties’ children are X, born in 2013 and Y, born in 2016. There are no existing orders about the living arrangements for the children.
The father started proceedings for property settlement in this Court on 17 June 2019 and filed an Amended Initiating Application on 26 August 2019 to include final parenting relief.
The parenting issues are practically enlivened because the parties have agreed that they will hereafter live separately, with the father moving out of the former matrimonial home and into rented premises by 12 June 2020.

Interim Parenting Dispute

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

The Law as to Parenting

Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in subsections 60CC(2) and 60CC(3) respectively.
In Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court addressed the practicalities of interim parenting determinations in the context of recent amendments to Part VII of the Act. At 80,901 the Full Court said:
68.... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Eaby & Speelman(2015) FLC 93-654 the Full Court (Thackray, Ryan and Forrest JJ) noted the reference in Goode to disputed facts in interim hearings:
18. ...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In SS & AH[2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. ...
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
For the purposes of the determination of these proceedings, I will set out the reasons in the following format:
(a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(b)where possible and relevant, consider and make findings about matters set out in s 60CC;
(c)assess the proposals against the best interests criterion;
(d)consider and make findings about living arrangements; and
(e)make orders.

The Parties’ Proposals

The parties agree that they will have equal shared parental responsibility for the children.
The parties agree that the children should be represented and that they should engage the services of a single expert to provide a report to them and if needed, to the Court.
The mother proposes that the parents immediately arrange and engage in family therapy and on that condition, that the children spend time with the father on a day only basis, each Wednesday afternoon and every second Saturday from 10.00 am to 6.00 pm. She also proposes time with the father on special days – Fathers’ Day, the father’s birthday, Christmas Day and on each of the children’s birthdays. She proposes that there be such other time as the parties agree. Otherwise the mother proposes that the children live with her.
The father has agreed to family therapy but opposes his engagement in that therapy being a condition for his time with the children. The father seeks that he spend four nights each fortnight with the children, with a graduation to five nights and one and a half week blocks in the holidays
The range of dispute on the key areas seems to be:
(a)whether or not there should be more than day only time with the father; and
(b)the particular terms of the father’s time.

Section 60CC Considerations

Section 60CC specifies certain considerations.

Primary Considerations:

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2]McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3]Champness & Hanson (2009) FLC 93-407.
Both parties seek orders that would have the children spending time with each parent, unsupervised. It is highly likely that the relationships of the children with each of their parents are meaningful. Any orders should promote those relationships.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

‘Abuse’ and ‘family violence’ are defined terms.
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The mother described many incidents of family violence inflicted on her by the father. She does not contend that the father was physically violent to her but she describes incidents of verbal abuse and conflict. In particular, at paragraph 52 of her affidavit filed on 5 May 2020, the mother makes specific allegations of verbal abuse or highly inappropriate communication including communication to or in the presence or hearing of a child. In his responding affidavit the father says that he does not want to engage with the mother’s allegations at this time. As to allegations of verbal abuse in that specific paragraph, the father says that he does not recall the incidents but he does not challenge the mother’s evidence. There is no basis on which I should exclude the mother’s evidence.
There is no doubt that there has been a high level of conflict between the parents and that the children have been exposed to that conflict.
There is no current family violence order in place and neither of the parties has been convicted of a family violence offence.
The agreed parenting arrangements suggest that neither of the parties contends that the children would be physically harmed in the presence of the other parent.

Additional Considerations

(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

This criterion is not relevant. At the time of the hearing, X and Y were seven and four years of age respectively and were living with both parents. At paragraph 22 of his affidavit the father asserts that the children have been vocal in expressing to the mother their insistence that she allow them to spend time with the father. The particular expressions are not set out in the affidavit and there is not even an indication of any views expressed by the children about spending time with the father overnight after he moves out of the home. Indeed, there is no indication that the children knew that the father was intending to move out.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

The background facts suggest that there is a loving relationship between the children and each parent.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
This is not a distinguishing consideration.

(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

This is not a distinguishing consideration.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

This is the critical issue. As I have recorded, the parties have prioritised the mother’s time with the children. After the father leaves the home, the children will mainly continue to live there with the mother. Albeit not as extensive as he would have liked, on occasions the father has had the children on his own, away from the home. The mother is concerned for the children if they are with the father overnight and the father has not put into issue the facts relied on by the mother for some of those concerns.
The notes from H School reveal that the father has expressed concerns for X once he moves out of the home. Nevertheless the father has agreed to move and seeks no restrictions or supervision of the mother’s time.
Again, without an Independent Children’s Lawyer there has been no opportunity for independent enquiry on behalf of the children.
The circumstances suggest a cautious approach.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

The parents’ recent relationship is poor. Importantly they have not been able to insulate the children from their conflict. That will have an impact on the practical difficulties in the children spending time and communicating with each parent.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The orders sought by each parent suggest that each of them has a level of confidence in the capacity of the other to provide for the children’s needs.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

This criterion was not highlighted during submissions.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Neither parent has been entirely successful in protecting the children from conflict between the parents. Otherwise, the orders sought suggest that the parents have demonstrated appropriate attitudes.
The father is critical of the mother’s conduct in respect of the sleeping arrangements for the children and the mother’s encouragement of Y using a dummy. However, that criticism does not find expression in the orders he proposes.

(3)(j) any family violence involving the child or a member of the child’s family;

The mother makes allegations that are largely not addressed by the father and as I have mentioned above, in some instances, they are not put into issue by him.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no relevant family violence order.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

These are interim proceedings and it is unlikely that any orders I make will bring the entire proceedings to an end.

(3)(m) any other fact or circumstance that the court thinks is relevant.

Nothing comes to attention here.

Parental Responsibility

The parties have agreed to an order that they will exercise equal shared parental responsibility.

Living Arrangements

I am required to consider making an order for equal time and if that is not ordered, to consider making an order for substantial and significant time. Neither party seeks equal time and on the common ground facts, that is understandable.
The father’s proposal would amount to substantial and significant time but the mother proposes something that would fall well short of such time.
As was the situation before the Court in Goode, there are issues here which are disputed and in respect of which I cannot make findings. I am to look to “the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future”.[4] However, that does not mean ignoring serious contentions that are controversial. The fact that allegations are not conceded does not mean that they can be ignored. (See Eaby & Speelman above and Dieter [2011] FamCAFC 82 at paragraph 58 and following).
[4]Goode & Goode (2006) FLC 93-286 at [68].
The father has concerns about the mother but they are not such as to influence the orders he seeks. Despite the father’s concerns about the children sleeping with the mother, for example, it is common ground that the children will live, overnight, unsupervised and for block periods with her. Indeed the parties have acted in a way that is consistent with that position. During the long period of separation under one roof, when one of the parents slept away from the home, it was the father and at those times he left the children in the care of the mother overnight. Similarly, the parties have agreed that it will be the father who moves out of the home and the mother and children will largely remain in the property.
On the other hand the mother has serious concerns about the welfare of the children in the father’s care. Those are matters that she seeks to agitate on a final basis. As I have mentioned, the father does not categorically refute all of the mother’s complaints. He concedes that if he was responsible for the conduct in question, then it was inappropriate.
Although the representations in the father’s case suggest that he does not agree that the children were unacceptably exposed to conflict during the parties’ long separation under one roof, that is not the impression left by the totality of the parties’ evidence. The parties describe significant behavior suggesting a high degree of conflict between them, including occasions when the children were present or otherwise exposed. It is possible that one of the parents has exaggerated their reports of conflict but it would be remarkable if they have both done so.
On the positive side, there is reason for confidence that each of the parents is highly motivated to care for the children. Two highly competent advocates represented the parties before me and they mounted energetic arguments on behalf of their clients. There is a necessarily unpleasant aspect of litigation and the casualties of the process can include the efforts and importance of loving parents being seemingly dismissed, trivialised or demonised. There may be some merit in the criticisms made but I am confident that each of the parents wants nothing but the very best for the children.
I am asked on behalf of the father to take notice and comfort from observations made by a family consultant in a memorandum that issued after she saw the parties in January 2020. Unless the parties agree, parenting proceedings are not determined solely by the recommendations or observations of a family consultant let alone where those recommendations and observations are made at an early stage, cannot be tested and may later be changed. Of course, family consultants are a wonderful resource to the parties and to the Court, representing an independent view of relevant matters from highly qualified and experienced professionals. Unfortunately, because of the way in which these proceedings have developed, at least one of the parties is not an entirely reliable witness, there is no Independent Children’s Lawyer and therefore no opportunity for independent investigation or input on behalf of the children into this interim decision.
It is understandable that courts take a cautious approach in interim proceedings about a child’s welfare. There is no presumption that any particular pattern of living arrangement will be more suitable than another. By definition, cases that require judicial intervention are out of the norm and may require orders that impose living arrangements in ways that are also out of the norm. Here the background facts demonstrate that there are no serious concerns about the children in the mother’s care. The only issue is about the children being in the father’s care.
The issues raised by the mother are important. Parenting is a skilled and demanding role and longer periods with the children, as would be involved with the overnight arrangement proposed by the father, increase the opportunity for inappropriate communications such as those to which the mother deposed. With the father allowing for the possibility that he was responsible for such communications, I cannot assume that the children will not be exposed to such behaviour. A cautious approach supports the mother’s proposals.
In the circumstances, but subject to the parents otherwise agreeing, the orders will provide for the father to spend time with the children on a day only basis. Importantly, no harm will come to either child by reason of an interruption of the overnight time they have experienced with their father (albeit with their mother) at the former matrimonial home for most of their lives. I will make orders as proposed on behalf of the mother, unless the parties otherwise agree.
The father’s proposals deal with a raft of additional issues not addressed by the agreed orders or by the mother, such as overseas travel. There was no focus on those other matters in the hearing and in my view the orders proposed by the mother will give the parties a foundation for developing any other necessary arrangements for the children.

Conclusion

Leave will be granted to the parties to bring the matter back before me or another available judge within seven days, or such further time on which the parties may agree, in relation to the wording of the orders.

Financial Issues

Interim Spousal Maintenance

The mother seeks that the father pay interim spousal maintenance as follows:
(a) $578 per week; and
(b) direct payment of specified outgoings and utilities for the mother’s household
The father seeks that the mother’s application be dismissed. The mother’s claim is opposed on the basis that the father asserts that the mother has unexercised earning capacity and even if a need is established by her, he does not have the capacity to reasonably meet her claim.
Spousal maintenance is a remedy available, (in this instance) between parties to a marriage, whether the marriage is on foot or not. If one party can demonstrate that he or she cannot adequately support themselves from their own resources, the other party can be called on to provide that support to a reasonable extent. That is the import of s 72 and s 74 of the Act. Any decisions about those threshold matters and about the quantum of any support are to be made by reference to s 75(2) of the Act.
The first issue is whether the mother can demonstrate that she cannot adequately support herself from her own resources. The mother’s current income is $315 per week from the Alanis Trust. In the year ended 30 June 2019 the mother’s income generated $24,755 in income but after expenses, represented an annual loss of over $40,000. I asked about the mother having any significant earnings and was told, without complaint, that in 2013 she had an income of $100,000. I am not sure if that was net or gross income. It is submitted on behalf of the father that the mother has an unexercised earning capacity of significance. There is no evidence to suggest that the mother has received a significant income in recent years. There is no basis for finding that the mother’s current situation puts her in a better position to increase her income than what has occurred in the recent past. The parties have apparently worked on a child support assessment reflecting something like the parties’ reported incomes. There is no basis for me finding that the mother has a significantly unexercised earning capacity that would be relevant to these interim proceedings. That is not to say that this question will be irrelevant to the final proceedings.
The mother puts her current expenses at $2,758 per week but notes that the mortgage is paid from the joint B Bank account and that the father also pays an unknown component of those expenses, including other household outgoings. The father submits that the expenses deposed to by each of the parties are broadly commensurate with their lifestyle and reasonable requirements. I am satisfied that the mother has demonstrated a need for the support at or greater than the level she claims.
The father’s weekly income is said to be $6,620 made up of his base salary as a Senior Manager of a corporation, with a deduction to recognise his intention to purchase additional leave from his employer. Subject to satisfactorily completing a probationary period ending in October 2020, the father will receive a bonus of $260,000. Albeit that the proposal is said to be by way of interim property settlement, the father proposes that the bonus be evenly shared with the mother. In addition, the father’s employment contract provides for his employer to pay a discretionary bonus or incentive payment from time to time of up to 65 per cent of his salary. The mother submits that the father’s income in a previous position was significantly greater than his current base salary and I take it that the Court is invited by the mother to assume that he expects to receive much, if not all, of the sign-on and discretionary bonuses.
The father puts his weekly expenses at $8,163 which includes an expenditure of unknown value in the form of the support he provides to the mother’s household and $1,905 in rent for his new residence. The effect of the mother’s case is that the father’s overall financial position is sufficient to meet her claims. It is submitted on her behalf that the Court can safely presume on the father satisfactorily completing his probation and on him receiving the sign-on bonus. It is submitted that the father’s actions in committing to pay rent of the order of $2,000 per week and his substantial expenditure on setting up his new premises, speak of him having greater confidence in his income than he asserts in these proceedings. Again, there is no specific complaint about the father’s claimed expenses.
Each of the parties calls in aid of their proposals, access to joint funds. That is the source from which at least some of the outgoings on the former matrimonial home have been met. If an order for support is made from joint funds it is arguably not or not solely, an order for maintenance. Unless the drawings on the joint funds are characterised as interim property settlement, in this instance to the father, the effect of such an order is that the mother would be contributing to her own maintenance.
The Court is normally obliged to take a broad brush to interim maintenance proceedings. That is because of the difficulty in making findings of fact on disputed issues at an interlocutory hearing and because in most cases there is a possible remedy in the final proceedings for excessive or inadequate provision for maintenance in the interim. See Redman and Redman (1987) FLC 91-805 at 24.
In the broad, only the father has any flexibility in terms of his weekly budget. The only available source for spousal support and family expenses is the parties themselves. I am not permitted, for example, to require the mother’s household to be supported by her extended family. I am satisfied that, in the interim, the father will be able to continue to support the mother. It is important to note that there is no requirement for maintenance to be paid out of income. For example, here, in addition to the joint B Bank account, the father has savings in his own name. I will order that the father pay the mother $578 per week by way of interim spousal maintenance.

I will also order that the parties facilitate payment of the outgoings claimed by the mother from the B Bank account. I cannot make an order for spousal maintenance to be paid out of the joint account without attributing the payment to one of the parties. After the event, a bare order will arguably mean that the parties met the expenses in question in the same proportion as the proportions of the overall property settlement. For example, if the mother ultimately retains 100 per cent of the property she will have, in effect, paid all of the household expenses. If the parties each receive 50 per cent of the property they will have, in effect, each paid one half of those expenses.
Each of the parties sought that payments be made from the B Bank account. The effect of s 114(1) of the Act is that in proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship, the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including, relevant to the circumstances here for example, an injunction in relation to the property of a party to the marriage. Therefore I would have power under s 114 of the Act to make an order in respect of the B Bank account. Although the parties made no reference to s 114, in my view, the parties are on notice that an order of the sort I propose, could be made. In my view the orders that I propose would be proper. Matrimonial expenses will continue to be met from matrimonial funds.

Interim Property Settlement

The mother seeks that the father pay her $100,000.
The father seeks that by way of interim alteration of the property interests of the parties, they each do all acts and things necessary, within seven days, to cause the sum of $20,000 to be paid to the wife from their joint B Bank account.
The father also proposes that by way of further interim alteration of the property interests of the parties, he shall do all acts and things necessary to cause to be paid to the mother, 50 per cent of any net payment received by him in accordance with Clause 7.9 of his Employment Agreement with his employer dated 13 March 2020.
The effect of the authorities is as follows: It is usual and preferable that there be one final order for settlement of property. However, property settlement orders can be made in parts and can be made on different days. There needs to a reason for an interim property order to be made but it does not have to be a compelling reason. As with an application for final property settlement orders, an application for interim property settlement involves an exercise of power under s 79 of the Act. That, in turn, involves some preliminary assessment about the pool of assets, about the parties’ contributions and about any adjustments that might be made by reason of ss 79(4)(d), (e), (f) and (g). The Court must consider whether it would be just and equitable to make any distribution of property, and if so, whether a particular distribution is itself, just and equitable. Because interim decisions are usually made without the ability to test any evidence, the interim order must either be conservatively within the property settlement claims of the party in question and/or an order that can be adjusted or reversed on a final hearing.[5]
[5] Harris & Harris (1993) FLC 92 378; Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; and Strahan & Strahan (2011) FLC 93-466.
The first thing to say is that there are obvious reasons for orders in favour of the mother. Except as I have identified, she has no resources of her own and she has and will continue to have the need for capital, whether for expenses of a capital nature to support her household or for legal costs.
The next thing to say is that the matrimonial assets are asserted to have a net value in excess of $5 million. The parties’ marriage involved them living under one roof for about 19 years and valuable contributions were made by each of them over that period and are ongoing. It is not possible that the range of payments under consideration here would exhaust the entitlement of either party to a just and equitable settlement of property or jeopardise such a settlement to the other party.
There is some common ground. The mother seeks a payment of $100,000 and the father seeks that she receive $20,000 in addition to one half of his sign-on bonus, when and if it is paid. Although the mother does not specify it, the source of those funds could only be from joint funds. I will make the order proposed by the father in respect of $20,000.
The father’s approach to his sign-on bonus is the sensible one. There is no need to presume on the receipt of the bonus and the order will be drawn as the father proposes. There is no obvious reason why the mother would be limited to one half of the bonus but there was no other proposal from her about sharing that payment and nothing else was put for the parties to consider during the hearing. Provided that the bonus is received, the combination of those two payments should make significant progress towards the $100,000 that the mother seeks.
As to the father’s proposals about outgoings for the mother’s household and for children’s expenses. Although he refers to interim property settlement there is no indication of the change of property interests that would result from those payments. I have addressed those expenses elsewhere in these reasons.

Child Support

Finally, the parties having agreed to an order that the father maintain the children’s private health insurance, the mother seeks that the father pay by way of child support in a form other than periodic payment to her, by way of direct payment of the expenses associated with the children including school fees; childcare fees, including before and after school care fees; agreed private tuition for either of the children as required from time to time; the costs of current and agreed future co-curricular activities; and medical expenses for the children not covered by any private health insurance or Medicare, including the costs of emergency and agreed surgery.
Again, there appears to be a level of further agreement. Although the father’s proposal is that the payments be made by way of interim property settlement, he proposes that the parties cause payments from the joint B Bank account for:
(a)the H School fees for X;
(b)F School fees for Y; and
(c)liabilities in relation to the extra-curricular and co-curricular activities for the children, provided such expenses were agreed to in writing prior to being incurred.
Otherwise, the father seeks that the mother's application for interim child support be dismissed.
That would seem to leave for consideration, payment from the joint account of:
(a)fees for before and after school care;
(b)fees for agreed private tuition for either of the children as required from time to time; and
(c)medical expenses for the children not covered by the parties’ private health insurance or Medicare, including the costs of emergency and agreed surgery.
Section 124 of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) provides for payments of child support in a form other than periodic payments made to the carer of the child.
The legislation is convoluted. The effect of ss 123 and 124 of the Assessment Act is that, provided a child support assessment is in force, an application can be made to a court for an order, among other orders, that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support. The order must be just and equitable by reference to subsections 117(4), (6), (7), (7A) and (8) of the Assessment Act and otherwise proper by reference to subsection 117(5) of that Act.

Just and Equitable

Going to the relevant matters outlined in s 117(4) of the Assessment Act:

The nature of the duty of a parent to maintain a child

The effect of s 3 of the Assessment Act is that the parents have the primary duty to maintain the children. That duty has priority over all commitments of the parents other than commitments necessary to enable them to support themselves and the other children. The duty of each parent is not affected by the duty of any other person to maintain the children.
The thrust of this provision is to ensure that child support liabilities are based on the income, earning capacity and financial resources of the parents, to have the parents meet the liability equitably as between themselves and to have eligible children share in the financial fate of their parents.

The proper needs of the children

The parties have set out in their respective Financial Statements their estimated expenditure on the children. The current assessment is $698 per week. The father says that he has lodged a review. As to the children’s living costs, apart from direct payments, the mother estimates that the children’s component of her household expenses runs at $707 per week.

The income, earning capacity, property and financial resource of the children

The children have no relevant income, earning capacity, property or financial resources.

The income, property and financial resources of each parent who is party to the proceedings

I have referred to the evidence about the parties’ income.
The parties each put the former matrimonial home at Suburb C at $4.4 million. I have referred to the joint B Bank account. The father has about $50,000 in a CBA account and the mother has about $10,000 with the ANZ Bank. The mother has a motor vehicle 1 and she estimates the Alanis Trust at $240,160. The mother has nearly $50,000 in superannuation. The father owns shares in three companies. Although there are problems with the explanation in his Financial Statement, it is the father’s contention that the shares are worth about $77,000. The father has a motor vehicle 2 and about $370,000 in superannuation.
According to their Financial Statements, each of the parties owes about $470,000 on the mortgage which is secured on the Suburb C property. Strictly speaking each of the parties presumably owes all of the debt secured by the mortgage, rather than 50 per cent as asserted in the Financial Statements but for present circumstances I will assume that the mortgage secures a total debt of the order of $940,000.
The wife also owes about $194,000 to her parents and about $10,000 in other liabilities.

The earning capacity of each parent who is party to the proceedings

Although each of the parties is aggrieved about what they assert to be a gap between the earning capacity of the other and their actual income, no findings are available in these interim proceedings, consistent with those grievances.

The commitments of each parent who is a party to the proceedings that are necessary to enable the parent to support himself or herself or any other child or another person that the person has a duty to maintain

As I have said, neither party makes a serious criticism of the expenses disclosed by the other. As a practical matter, however, the orders proposed by the mother, together with the other demands on the father’s income, greatly exceed his salary.

The direct and indirect costs incurred by the carer entitled to child support in providing care for the child

I have referred to the mother’s evidence about those expenses.

Any hardship that would be caused to the child, the carer entitled to child support, the liable parent or any other child by the making of, or the refusal to make an order and to any resident child of the parent by the making of, or the refusal to make, the order.

In my view there is no evidence that either of the parents would suffer hardship because of making or refusing to make, an order. The parties have each drawn on capital or borrowings to meet the shortfall in their weekly budgets and will presumably continue to do so.

Conclusion

The expenses referred to in the mother’s claim are necessary and appropriate. Within the limits of these interim proceedings, I am satisfied that it would be just and equitable for the burden of any expense in those categories to be shared. Of course, on a final hearing a decision about the proportions in which the parents should bear the child related expenses can be explored with greater certainty.

Otherwise Proper

Section 117(5) of the Assessment Act provides that in determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support , to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
The mother is not in receipt of an income-tested benefit. Therefore the outcome of this application will not have an impact on the revenue. In my view the interim orders sought by the mother would be otherwise proper.

Conclusion

The father concedes that some of the expenses should be paid but he seeks that those payments continue, at least in part, to be made from joint funds. The parties disagree about other categories of expenditure. Although the issue was not developed by way of submissions, there appears to be a dispute between the parties about the extent to which they should have recourse to joint funds for additional expenses for the children. The irony is that all of the expenses in question will be paid and, had the parties stayed together, there is no doubt that they would want them to be paid.
I will adopt the orders proposed by the mother as to the expenses to be paid but will allow that the expenses be met from the joint account. The focus of s 124 of the Assessment Act is to apportion responsibility for child expenses between the parties. In that sense it may be permissible under this head of jurisdiction to order that the relevant payments be made from joint funds, without attributing the payment to one of the parties.
In any event, I am satisfied that I would have power under s 114 of the Act to make an order in respect of the B Bank account. In my view, such an order would be proper.
The obvious problem is that the joint account is a finite resource. As at 3 June 2020 the account had a balance of $113,914.97. In presenting the case, the parties have not attempted to quantify all of the amounts that they jointly and separately propose to withdraw from the B Bank account. I am therefore not able to make those calculations for them. Perhaps the parties have strategies in mind in the event that the available liquid funds are exhausted.
As with the parenting orders, the parties have leave to bring the matter back before me or another available judge within seven days, or such further time on which the parties may agree, in relation to the wording of the interim financial orders.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 July 2020.

Associate:

Date: 23 July 2020

[2020] FamCA 596

23 July 2020

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Family Law

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