Aronson and Aronson (No 2)

[2011] FamCA 738

FAMILY COURT OF AUSTRALIA

ARONSON & ARONSON (NO 2) [2011] FamCA 738

FAMILY LAW – CHILDREN – Who child lives with – Where child lives with – Time to be spent with each parent – When and where the children will attend boarding school in Country R

Family Law Act 1975 (Cth)

APPLICANT: Ms Aronson

RESPONDENT: Mr Aronson

FILE NUMBER: SYC 1495 of 2008

DATE DELIVERED: 7 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 5,6 and 7 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

SOLICITOR FOR THE RESPONDENT: Ms Karaky

Orders

1. I mark as exhibit A, a document titled Minute of Order. By consent I make orders pursuant to paragraphs 1 to 16 inclusive, 20, 22 to 25 inclusive, 27, 30 to 35 inclusive, 37, 38 and 40 as set out hereunder:

   BY CONSENT IT IS ORDERED AND NOTED:

   FINAL PROPERTY ORDERS

   1.   That the Wife shall retain and the Husband is declared to have no interest in: the whole of the Wife’s right, title and interest in the property at [P Street, Q Town, Country R] being all that land contained in Title Number ...

   2.That the Husband shall retain and the Wife is declared to have no interest in: such payments that may be paid to the Husband by his employer, [M Bank], upon the termination of his employment.

   3.That the Husband indemnify the Wife and keep her indemnified as to his liability to [T Pty Ltd].

   4.The Wife retain, to the exclusion of the Husband, the 6,000 [U Pty Ltd] Shares standing in her name and the balance standing in the [V Bank] account numbered …

   5.The Husband shall:

   a.indemnify the Wife in relation to any claim or claims made by his brother [Mr L] (“Mr L”), in relation to 6,000 [U Pty Ltd] Shares bought in the Wife’s name on behalf of [Mr L] and the associated dividends that have not been paid to [Mr L];

   b.indemnify for any capital gains taxation payable by the Wife in relation to the sale of the said [U Pty Ltd] shares provided that:

   i.the shares are sold before 31 December 2011;

   ii.documentary proof  from the relevant taxation authority is provided which establishes the amount of capital gains taxation payable by the Wife;

   c.for any share broking commission payable on the sale of the shares provided that such commission is at reasonable market rates (less than 1per cent).

   6.That the Husband:

   a.shall retain, to the exclusion of the Wife, the sole right, title and interest in all items of property standing in his name or which is in his possession as at the date of these orders;

   b.shall indemnify the Wife as to any liability standing in his name and keep her so indemnified; and

   c.release the Wife from any debt said to be owing by the Wife to the Husband.

   7.That the Wife:

   a.shall retain, to the exclusion of the Husband, the sole right, title and interest in all items of property standing in his name or which is in his possession as at the date of these orders;

   b.shall indemnify the Husband as to any liability standing in her name and keep her so indemnified; and

   c.release the Husband from any debt said to be owing by the Husband to the Wife.

   Notation:

   a.the Court notes that the parties intend these orders to finally determine the financial relationship between the parties and avoid further proceedings between them;

   b.the Husband has consulted with his brother [Mr L] about orders 4 and 5 above and has his consent to agree to the above;

   c.the parties have agreed that any Child Maintenance arrears that may be owing shall be discharged and/or paid in full as a function of the Wife retaining the [U Pty Ltd] shares and dividends pursuant to order 4.

   FINAL CHILD MAINTENANCE ORDERS

   8.That any other arrears in Child Maintenance that are owing on or before 6 September 2011 are discharged and the Wife hereby waives any claim in relation to the Child Maintenance arrears accrued or accruing on or before 6 September 2011.

   9.That effective 7 September 2011, all previous orders for the payment of Child Maintenance pursuant to Section 66G of the Family Law Act (“the Act”) be discharged.

   10.That effective 7 September 2011, the Husband pay the Wife the following sum on the 20^th day of every month by way of Child Maintenance pursuant to Section 66G of the Act into her M Bank Country H account number …:

   a.the equivalent of 450 BHD (Country Hi Dinar) on account of D (“D”);

   b.the equivalent of 450 BHD (Country Hi Dinar) on account of E (“E”)

   11.The husband to pay all private school tuition fees, whether boarding or otherwise, for the children [B, D and E] as and when they fall due at such schools the parties agree or a Court orders that they attend.

   12.The husband forthwith pay the outstanding fees owing to [St. C School] for the academic year commencing in September 2011 and he shall otherwise pay the fees as and when they fall due in accordance with order 11.

   13.The all outstanding applications or cross-applications for property adjustment, spousal maintenance, child maintenance or costs are dismissed.

   FINAL PARENTING ORDERS

   14.That all previous parenting orders are discharged.

   15.That the parents have equal shared parental responsibility for the children D born … 1997 and E born… 2001 ("the children").

   16.That the children live with the Mother.

   …

   17.That, unless otherwise agreed, during school terms:

   a.if the Mother lives in [Country H], the children or child then living with the Mother shall spend time with the Father every three weeks in [Country K] from Thursday until Saturday afternoon (“the weekend”) on:

   i.on the second weekend of the school term (except in the term commencing in September 2011 during which the children will spend time with the Father on the third weekend of the school term);

   ii.on the fifth weekend of the school term;

   iii.on the eighth weekend of the school term;

   iv.on the eleventh weekend of the school term;

   b.if the Father visits [Country H] then as agreed but failing agreement and provided not less than 48 hours written notice is given:

   i.from after school for a period of three hours on a school day, other than a Thursday, provided that he takes them to their extra-curricular commitments;

   ii.if on a Thursday for two nights commencing from after school and concluding at 5 pm on Saturday;

   iii.if on a Friday for one night commencing from after school and concluding at 5 pm on Saturday;

   provided that such time does not occur in [Country H] on consecutive weekends.

   c.if the Child attends school in the [Country R] from:

   i.after school Friday until before school Monday for the period that the Father is spending time in the [Country R]; and/or

   ii.such other times that are suitable to the relevant Child provided that the time to be spent is not inconsistent with the visiting rules of the relevant school which she may attend from time to time.

   provided that such time does not occur in [Country R] on consecutive weekends.

18..

…

19.That the children live with each parent:

a.for one half of each of the spring and summer long school holiday periods which occur between school terms, and in default of agreement as to how to divide the holidays, during the first half with the father and the second half with Mother; and

b.during the winter school holiday period:

i.the children shall live with the father from the morning of Christmas Eve until the afternoon of 2 January the following year in years ending in an even number commencing December 2012, and the children shall live with the mother for the remaining periods of the said school holidays; and

ii.the children shall live with the Mother from the morning of Christmas Eve until the afternoon of 2 January the following year in years ending in an odd number commencing in December 2011, and the children shall live with the Father for the remaining periods of the said school holidays.

Notation: for the purposes of this order the Holidays are taken to commence from the conclusion of school on the last day of the school term and is taken to conclude on the day before the Child is to attend school for the following school term.

20.That for the purposes of implementing the provisions of Orders 20(a) and 21, 22(a) and 22(b)(ii), the mother make the children available to board as unaccompanied minors the flight with [W Airlines] from [Country H] Airport to [Country K] at 5.50pm on the day the children or any of them are to commence spending time with the Father in [Country K] and the father shall make the children available to board as unaccompanied minors the [W Airlines] at 4.45 pm from [Country K] to [Country H] on the day that the children are to resume living with the Mother pursuant to these orders, except when the children are to be returned on the morning of Christmas Eve in which case the Father shall make the children available to board the morning flight to [Country H].

21.That for the purposes of implementing the provisions of Order 22(b)(i), the mother make the children available to board as unaccompanied minors the flight with [W Airlines] from [Country H Airport] to [Country K] at 9.50am on the day the children or any of them are to commence spending time with the Father in [Country K] and the father shall make the children available to board as unaccompanied minors the [W Airlines] flight at 4.45 pm from [Country K] to [Country H] on the day that the children are to resume living with the Mother pursuant to these orders.

22.That the father shall pay the costs of the flights and visas referred to in orders 23 and 24 arranged in accordance with those orders.

23.

24.

25.

26.

27.That each party inform the other of any change of address not less than 28 days prior to such change.

28.That each party inform the other of any change in telephone number as soon as practicable after the change.

29.That each party shall authorise the children's school and medical practitioners to communicate with the other party about the children's education and health and to supply copies of any document requested.

30.That if the children's schools are unable to comply with a request to supply a copy of any document provided to one parent, then the other parent shall supply a copy as soon as practicable after receiving a request to do so.

31.That the mother have sole parental responsibility in relation to and is hereby authorised to be the sole signatory on documents when obtaining renewals or replacements of the children's [Country R] passports, and shall keep the children's [Country R] passports.

32.That the father have sole parental responsibility in relation to and is hereby authorised to be the sole signatory on documents when obtaining renewals or replacements of the children's Australian passports, and shall keep the children's Australian passports.

33.

…

34.That each party shall not denigrate the other:

a.In the presence or hearing of the children; or

b.In the presence or hearing of any teacher or staff member of the children's schools; or

c.In the presence or hearing of any child attending the children's schools or such child's parents

35.That, except in the case of emergency or for the purposes of schooling in the [Country R], should a parent wish to take the children or either of them outside of [Country K/Country H], then that parent shall not less than 14 days prior to departure supply the other parent with an itinerary which provides details of flights and accommodation.

36.…

.

37.That if the father is unable to spend time with the children pursuant to these Orders for any reason other than the failure by the father to give the mother at least one weeks notice in writing of his unavailability to spend time with the children, then the children shall spend time with the father in the same place they would have spent time with him on the missed visit:

a.if at the father’s election (and the requisite notice referred to in this paragraph has been given), either the weekend immediately following or the weekend two weeks later, at the mother’s discretion; and

b.if for any other reason, then the weekend immediately following. 

1. The parties shall cause D to be enrolled in a boarding school, or school, within a 75 kilometre radius of X Airport, City Y at a time she indicates a desire to attend school in the Country R.  The court notes the father would like D to attend school in the Country R commencing in September 2012. 

2. In event of the party disagreeing as to whether D has expressed her wish to commence schooling in the Country R, they are to settle that dispute in the manner provided in the paragraph 19(d) of exhibit A.  To that end, an order is made pursuant to paragraph 19(d) of exhibit A, omitting the words “having regard to orders 17 and 18” as set out hereunder:

   19.That, unless otherwise agreed, the parties shall do all such things:

d.to instruct [Ms. Z] to prepare a report, having regard to orders, which shall set out the wishes of [D] and [E] as to the school either of them may wish to attend in the [Country R] and the timing of her commencement at such school with the costs of such report and the consultations in relation to the preparation of such report to be met by the Father.

1. The parties shall cause E to attend school in the Country R in the same locale as the school attended by D (if not the same school) at a time E expresses a desire to attend school in the Country R.  The court notes the father would like E to commence schooling in the Country R in the school year commencing September 2015.

2. In the event of the parents being unable to agree as to E’s wishes in relation to commencing school in the Country R, they are to jointly appoint a child psychologist to ascertain such wishes.  The father is to pay the costs of the report.  If the parents can’t agree on a child psychologist to interview E for the purpose of this order they are to jointly request the President (or equivalent) of a society of psychologists practising in Country R to nominate a child psychologist for the purpose of this order.  That psychologist may be one resident and working in either Country H or Country K should that be appropriate.

3. Either party is at liberty to arrange counselling/therapy for either of the children should that parent consider it would be of assistance to the child.  If a parent does so arrange counselling/therapy for one or more of the children that parent is to provide details of the name of the counsellor/psychologist to the other party. 

4. In the event that the [Country R] Government issues a notice following the making of these orders for nationals of [Country R] to evacuate [Country H] then the parties shall act as provided for in subparagraphs (a), (b)and (c) of paragraph 26 of exhibit A as set out hereunder:

   26. That, unless otherwise agreed, in the event that the Department responsible for Foreign Affairs (currently DFAT) in Australia issues a notice on its website, after the date of these orders, advising nationals of Australia to evacuate [Country H], or words to this effect, whether temporarily or permanently then:

(a)       the Mother shall do all things so as to cause the Children to evacuate from [Country H] as soon as flights are available to depart (expected to be within 48 hours);

(b)       upon the evacuation from [Country H] the Children shall reside in a location agreed between the parents and failing agreement the Children shall reside in the [Country R];

(c)       the Children shall not continue to live or reside in [Country H].

1. In the event of the parents having computer facilities that allow the children to use computer programs such as Skype or equivalent then each parent is to make such facility available to the children to communicate with the other parent at all reasonable times. 

2. The father, at the request of the mother and at her cost, is to apply for certified copies of each of the children’s birth certificates and, when received, provide those to the mother. 

3. An order is made pursuant to paragraph 39 of exhibit A with the amendment to the wording so as to remove the words “four weeks” and insert the words “21 days”. 

   39. That the mother shall not arrange any activities of any kind for the children on weekends when the children are due to spend time with the father in [Country K], and shall not accept any invitation on their behalf on those weekends or permit the children to accept such invitations with the exception of school events of which the Father is given at least 21 days written notice by the Mother and in such circumstances the Father shall spend time with the Children in [Country K] on the weekend immediately following. 

4. Provided all that is required is for the father to sign documents acknowledging that an application is being made by the children’s Country H school for them to be registered as residents of Country H (giving rise to each child being issued with a population registration card) and/or giving his agreement to such an application being made by the children’s school, then the father is to attend, at the written (email) request of the mother, at the Country R Embassy in either Country H or Country K and sign documents required to enable such applications to proceed. 

5. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. I note the matter has now concluded in this Court and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1495 of 2008

Ms Aronson

Applicant

And

Mr Aronson

Respondent

REASONS FOR JUDGMENT

1. Before the court are proceedings between Ms Aronson (“the mother”) and Mr Aronson (“the father”) in relation to both property and parenting issues.  The matter was listed for hearing to commence on Monday 5 September 2011.  In the latter stages of the week before the hearing, the parties and their children, D aged 14 and E aged 11, travelled to Australia for the purposes of meeting with a family consultant to enable the preparation of an updated family report.  The mother and the children predominantly live in Country H and the father predominantly lives in Country K. 

2. The hearing commenced on Monday, 5 September 2011 with evidence given by the family consultant in relation to her meeting with the parents and the children shortly before the hearing commenced.  Thereafter the parties were invited to consider the evidence of the family consultant and their proposals to see if any accommodation could be reached.  Towards the end of the second day of the hearing the parties provided to me a document which I have marked as exhibit A.  This is a very extensive document titled “Minute of Order” and it deals with final property orders, final child maintenance orders, and final parenting orders.  I was informed by the parties that the proposed orders relating to property and child maintenance were agreed, and I was invited to make orders pursuant to paragraphs 1 through to 16 of exhibit A.  Thereafter the parties outlined disputes between them relative to the parenting orders. 

1. The first dispute arises as a combination of three proposed orders, being paragraph 17, 18 and 19 of exhibit A. One of the issues for the parties has been the schooling for D and E in the Country R.  The parties’ eldest child B, who is now seventeen and a half years of age, is at boarding school in England and it is at least the father’s wish that D and E follow her in that schooling pattern.

2. Paragraph 17 of exhibit A is substantially agreed. There is disagreement about when D would commence attending boarding school in Country R.  The mother’s position is that D should have a very significant say in when she attends at boarding school and where she attends boarding school.  The only limit that the parties agree on is that the school should be within 75 kilometres of X Airport, the reasons for that being fairly obvious.

3. Paragraph 18 of exhibit A deals with schooling proposals for E.  It requires that E attend school commencing in 2015.  The parties agree that if and when she does commence boarding school in the Country R it be in the same locale as the school attended by D, or perhaps even the same school.  Anticipating that there may be a dispute about the children’s wishes in relation to schooling, the parties have agreed to engage a Ms Z, who is a counsellor based in Country H, for the purposes of ascertaining the wishes of D and E in respect of their schooling.  The husband also seeks that the children attend upon that same counsellor for therapeutic counselling commencing forthwith.  The mother opposes the wording of the order sought.  She does not know who Ms Z is.  She suggested another name which was apparently not acceptable to the husband.  The mother does, however, support the children having counselling if they are agreeable to that course of action.

4. In relation to the question of D attending boarding school, the evidence from the family consultant indicated to me that D has an understanding that at some time in the future she will wish to attend school in England as her older sister has done.  At this stage D is undecided as to whether she will wish to commence that schooling in September of next year or the following year.  In the circumstances, I think it reasonable that she be permitted to make her own decision about that.  Each of the parents should restrain themselves from allowing their own interests to rise above D’s interests and in some way attempt to influence D against the wishes of the other parent relative to this matter.  I will not make an order to that effect but hope that the parents may behave in that way.

5. Further evidence from the family consultant was alarming in relation to the state of distress exhibited by the children during her interview with them.  D, in particular, became very distressed when dealing with the topics of the interviews such that the family consultant was required to physically console her.  D did not wish to seek consolation from either of her parents and it appears that she did not want her parents to know that she was as distressed as she clearly was.  That suggests to me that D very much needs a third party to discuss her life with.  The parties themselves can not agree on that process and, therefore, it seems to me that the only reasonable path, given D’s age, is to allow the parties individually to arrange for counselling and/or therapy for D, with her consent, and to advise the other parent of the action that has taken place.  The same should apply to E. 

6. Therefore, I propose ordering that the parties shall cause D to be enrolled in a boarding school, or school, within a 75 kilometre radius of X Airport, City Y at a time she indicates a desire to attend school in the Country R.  The court notes the father would like D to attend school in the Country R commencing in September 2012.  In event of the parties disagreeing as to whether D has expressed her wish to commence schooling in the Country R, they are to settle that dispute in the manner provided in the paragraph 19(d) of exhibit A.  To that end, an order is made pursuant to paragraph 19(d) of exhibit A, omitting the words “having regard to orders 17 and 18”.

7. I also propose to order that the parties shall cause E to attend school in the Country R in the same locale as the school attended by D (if not the same school) at a time E expresses a desire to attend school in the Country R.  The court notes the father would like E to commence schooling in the Country R in the school year commencing September 2015. In the event of the parents being unable to agree as to E’s wishes in relation to commencing school in the Country R, they are to jointly appoint a child psychologist to ascertain such wishes.  The father is to pay the costs of the report.  If the parents can not agree on a child psychologist to interview E for the purpose of this order they are to jointly request the President (or equivalent) of a society of psychologists practising in Country R to nominate a child psychologist for the purpose of this order.  That psychologist may be one resident and working in either Country H or Country K should that be appropriate.

8. I propose to further order that either party is at liberty to arrange counselling/therapy for either of the children should that parent consider it would be of assistance to the child.  If a parent does so arrange counselling/therapy for one or more of the children that parent is to provide details of the name of the counsellor/psychologist to the other party. 

9. The next area of dispute between the parties relates to paragraph 21 of exhibit A.  This relates to what is termed “short breaks” or “half-term holidays” for the children’s schooling in Country H.  Unfortunately, there is no predictable length to such breaks and, amongst other things, it appears they are dependent on religious festivals in that country.  The father is seeking that the parties might share those breaks on an alternate basis.  The mother opposes that.  It is difficult to frame an order in relation to these particular breaks.  I am told that the break can vary in length between two days and two weeks.  The mother’s position is that where it is for a few days it is, or has been, tacked on to a time when the children were spending time with their father.  For my part, I propose that the matter be resolved by the following order.

10. In the event of a half-term holiday for either D or E (whilst at school in Country H) falling on either side of an occasion when the children are with the father, pursuant to these orders, and in the event that the occasion is for not more than four days, then the children are to remain with the father for that time.  In the event that the half-term break is greater than four days then the children are to spend half of that time with the father irrespective of whether it adjoins part of a period of time they would otherwise be with him pursuant to these orders or not. 

11. The next area of dispute falls in paragraph 26.  This is a dispute about when and where the mother and children would be evacuated from Country H.  The order is framed because of concerns that trouble in the vicinity of Country H may lead to either the Australian Government or the Country R Government warning their nationals living in that country or present in that country (Country H) to immediately evacuate.  The father suggests that the Australian authorities’ warnings are the ones to be the subject of the order.  The mother seeks that the Country R Government warnings be the trigger point for the operation of the order.  There is no suggestion in that either of the countries values less the lives of their nationals, but rather the consequence of such a warning having issued from either of those government bodies in terms of evacuating nationals from Country H.  The parties agree, in any event, that the children should be evacuated to Britain and their mother’s case is that to ensure that happens the children should be relying on their Country R nationality/passports rather than their Australian passports.  I consider there is merit in that argument and I propose to order that in the event that the Country R Government issues a notice following the making of these orders for nationals of Country R to evacuate Country H then the parties shall act as provided for in subparagraphs (a), (b)and (c) of paragraph 26 of exhibit A.

12. The next area of dispute arises in paragraphs 28 and 29 of exhibit A and relates to the father being able to take advantage of computer programs such as Skype for the purposes of communicating with the children whilst they are in the mother’s residence.  The father seeks that the mother obtain a landline and broadband internet connection to facilitate communication. The mother opposes those orders on the basis of the cost to her.  She has an internet facility.  I am not able to determine whether that facility would support Skype or otherwise.  In any event, it is a difficult issue to determine and I propose that in the event of the parents having computer facilities, which allow the children to use computer programs such as Skype or equivalent, then each parent is to make such facility available to the children to communicate with the other parent at all reasonable times. 

13. The next area of dispute relates to paragraph 36 and is about the mother requesting certified copies of the children’s birth certificates.  There was considerable argument about this and particularly in relation to who acquired the certified copy of birth certificates in the first place.  The certificates are currently in the possession of the father.  The mother’s case is that the father is the only person who can apply for the certificates given her female status and the fact that she lives in Country H.  I propose to resolve the dispute by ordering the father, at the request of the mother and at her cost, to apply for certified copies of each of the children’s birth certificates and, when received, provide those to the mother. 

14. The next issue is in paragraph 39 of exhibit A.  This is particularly about the mother not making arrangements for the children to participate in activities on weekends when they are due to spend time with their father in Country K.  There is no issue about that so far as the mother is concerned.  The only issue between the parties is that where such arrangements are necessarily required because of school commitments the father’s consent will be required.  And there is an issue about how much notice is necessary for that particular requirement.  The father seeks four weeks written notice so that he can arrange air travel and the like.  The mother says sometimes there isn’t four weeks notice and she is seeking not less than two weeks notice.  In the circumstances, each has a reasonable basis for the disagreement, however, I think a compromise is required and I propose to make an order pursuant to paragraph 39 of exhibit A with the amendment to the wording so as to remove the words “four weeks” and insert the words “21 days”. 

15. Finally, there was an issue between the parties which had not been the subject of a proposed order inserted in exhibit A.  It relates to the issue of a card described as a “population registration card” for each of the children. That card can be issued by the Country H authorities at the request of the children’s school.  With such a card it is unnecessary to make application for entrance visas for the children in Country H each time they leave and/or arrive in the country and would make life, particularly for the mother, easier.  The parties ultimately, with assistance from me, have agreed that provided all that is required is for the father to sign documents acknowledging that an application is being made by the children’s Country H school for them to be registered as residents of Country H (giving rise to each child being issued with a population registration card) and/or giving his agreement to such an application being made by the children’s school, then the father is to attend, at the written (email) request of the mother, at the Country R Embassy in either Country H or Country K and sign documents required to enable such applications to proceed.

16. I note the parties have agreed to consent orders in relation to outstanding financial, child maintenance and some parenting issues and I propose to make those orders by consent.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 7 September 2011.

Associate:

Date:  20 September 2011