ASGHAR and HARAMIJA
[2022] FCWA 72
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ASGHAR and HARAMIJA [2022] FCWA 72
CORAM: O'BRIEN J
HEARD: 4 MARCH 2022
FINAL SUBMISSION RECEIVED 10 MARCH 2022
DELIVERED : 8 APRIL 2022
FILE NO/S: [REDACTED]
BETWEEN: MR ASGHAR
Applicant
AND
MS HARAMIJA
Respondent
Catchwords:
PARENTING – Interim orders – Where the parties agree that it is in the best interests of the children to move to an equal shared care arrangement but disagree as to timing – Where the parties differ on arrangements to be made during school holidays – Where the husband seeks various injunctions restricting the children's contact with members of the wife's family – Where the husband seeks further injunctions described in submissions for the wife as “oppressive and controlling” – Where the husband proposes interim orders for a change of school for one child where previous application in similar terms has been heard and determined – Turns on its own facts.
SPOUSAL MAINTENANCE – Where the wife seeks interim orders – Where the husband does not concede the threshold issue of the wife's capacity to self-support asserting that she is unemployed by choice – Where that submission is made one month after the wife suffered a [significant medical episode] from which she is expected to make a full recovery – Where notwithstanding the husband's high income that income is exceeded by his expenses – Turns on its own facts.
ENFORCEMENT – Where the wife seeks enforcement of an urgent maintenance order made to cover a short period before an interim hearing - Where the interim hearing was vacated because of the default of both parties in complying with relevant orders – Exercise of discretion not to enforce – Turns on its own facts.
LITIGATION FUNDING – Where the wife seeks a lump sum payment but no source of funds is identified – Where the husband's legal fees significantly exceed those charged to the wife and are being paid – Where a "dollar for dollar" order is justified.
Legislation:
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Kavanagh |
| Respondent | : | Ms Kerr |
| Independent Children's Lawyer | : | Mr Chibwe |
Solicitors:
| Applicant | : | Kavanagh Lawyers WA Pty Ltd |
| Respondent | : | Kerr Fels |
| Independent Children's Lawyer | : | Efficient Law Group (Perth) |
Case(s) referred to in decision(s):
Atkins & Hunt and Ors (2018) 57 Fam LR 128
Banks & Banks (2015) FLC 93-637
Bilz & Breugelman [2013] FamCA 578
Brown & Brown (2007) FLC 93-316
Chester & Chester (1995) FLC 92-612
Eaby & Speelman (2015) FLC 93-654
Eden & Eden-Proust [2011] FamCAFC 138
Gyopar & Gyopar (1986) FLC 91-769
Hall v Hall (2016) 257 CLR 490
JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Ramsay & Ramsay (1983) FLC 91-301
Re G Children’s Schooling (2000) FLC 93-025
Redman & Redman (1987) FLC 91-805
Rice v Asplund (1979) FLC 90-725
Salvage & Fosse (2020) FLC 93-966
SS & AH [2010] FamCAFC 13
Strahan & Strahan (interim property orders) (2011) FLC 93-466
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Asghar and Haramija has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2010 (WA).
1The various interim disputes between [Mr Asghar] ("the husband") and [Ms Haramija] ("the wife") in relation to both the arrangements for their children, [Child A] born [in] August 2015 and [Child B] born [in] March 2017, and financial matters came on for hearing on 4 March 2022, when I reserved my decision. In accordance with orders made that day, further materials were provided to the court by the husband’s solicitors on 10 March 2022.
2To their credit, the parties were able to agree a number of matters prior to the hearing, and various orders were made by consent. Those orders include interim orders for equal shared parental responsibility, arrangements for school holidays, family birthdays, Father’s Day and Mother’s Day, mutual injunctions, arrangements for handover, and the participation by both parties in a parenting course "[s]ubject to work commitments".
3The matters requiring determination in the parenting case may be summarised as follows:
(a)It is common ground that the children should move to an equal shared care arrangement, on a week about basis with handover on Fridays. The husband says that arrangement should commence immediately. The wife says that it should commence at the start of the 2023 school year, and that in the meantime the children should spend nine nights per fortnight in her care and five nights per fortnight in the care of the husband.
(b)The husband seeks an order that the children receive all recommended COVID-19 vaccinations and that he decide the vaccine type. The wife did not agree, but as will appear the submissions made on her behalf were somewhat equivocal.
(c)The husband proposes that the children spend half of the summer school holidays with each parent on a week about basis. The wife proposes that the children spend half of the summer school holidays with each parent, but with only one handover at the midpoint of those holidays.
(d)The husband seeks an order that the wife either have her existing hair sample (taken pursuant to earlier orders) tested for alcohol use or undertake a further test. The earlier order required testing for both drugs and alcohol, but the test undertaken was only for drug use. The Independent Children’s Lawyer ("ICL") supported that application.
(e)The husband seeks an injunction restraining the wife from "taking the children to adult parties or events past the children’s 7.30 pm bedtime unless otherwise agreed between the parties in writing". The wife opposes that application, submitting that it is an unnecessary and oppressive. The ICL submitted that the injunction was unnecessary.
(f)The husband seeks an injunction restraining each party from encouraging or permitting any other person to attend handover. In submissions, his counsel clarified that the order sought was directed to ensuring that the wife’s sister [Ms C] and the maternal grandmother did not attend handover, for reasons which will appear. He raised no objection to the possibility of the injunction being narrowed accordingly, saying it was not sought as part of a "general desire to… deny the mother assistance". The wife opposed that application, her counsel describing it as "oppressive", "unnecessary" and "controlling" and submitting that there was no justifying evidentiary basis. The ICL submitted, albeit with some equivocation, that the injunction in a narrower scope might reduce conflict.
(g)The husband sought orders for Child A to continue attending [School A] and for Child B to move from [School B] to [School C]. The wife agrees that Child A should continue at School A but opposes the proposed move for Child B, noting (among other things) that an application by the husband in identical terms has already been heard and dismissed.
(h)An interim order made by consent on 10 February 2021 restrains the parties from removing the children from the Perth Metropolitan Area without the consent of the other party. The husband sought the amendment of that order to make specific reference to [Holiday Town D], [Regional Town E], and [City F] as places captured by the injunction. When I queried that, counsel for the husband said that the inclusion of Holiday Town D was "an oversight" by him and that aspect of the injunction was not pressed. Counsel then (with respect, inevitably) conceded that Regional Town E and City F were already covered by the existing injunction. He explained that the order was sought as the husband alleges that the wife has breached the existing order by taking the children to Regional Town E without his consent. Nothing further need be said in that regard – there is no utility in making a further injunction which simply repeats an existing injunction.
(i)The wife sought the discharge of the existing injunction just referred to.
(j)The husband sought an order restraining the wife from allowing the children to be in the presence of Ms C, for reasons detailed later in this judgment. The wife opposed the application. The ICL did not support it, expressing concern at its potential duration and the impact on the children of not seeing their aunt, but did support a modified form of injunction restraining the wife from permitting the children to be exposed to offensive language or behaviour by her sister.
(k)The husband sought an injunction restraining both parties from allowing any person not a leaseholder on the relevant rental property to reside or stay overnight with them and a further injunction restraining each parent from leaving the children in the care of any person not agreed by both of them for “periods in excess of 3 hours without that person having a working with children’s clearance and police clearance”". The wife opposed the application as being oppressive and unnecessary.
(l)The husband sought an order requiring both parties to ensure that "both children at all times have their own bed and bedroom and sleep in their own room in their own respective homes". The wife opposed the application as being oppressive and unnecessary.
(m)The wife sought orders for specific and detailed arrangements for the time the children are to spend with each party over the Easter and Christmas periods. In short, she proposed that the children spend the whole of each such period with one parent, in alternating years. The ICL submitted that the children should see both parents at each Christmas and Easter and suggested orders to that effect. At the hearing it appeared that the husband supported the ICL’s proposal.
4The matters requiring determination in the financial case may be summarised as follows:
(a)The wife sought an order for interim spousal maintenance in the sum of $2,300 per week. The husband sought the dismissal of that application.
(b)The wife sought orders for litigation funding, requiring the husband to pay her solicitors a lump sum of $30,000, instruct his solicitors to transfer to her solicitors one half of any money held in trust on his behalf, and thereafter what is commonly referred to as a "dollar for dollar" order. The husband sought the dismissal of that application.
(c)The wife sought an order for any tax return credit paid to the husband by the Australian Taxation Office for the financial year ended 30 June 2021 to be paid into a joint account and held thereafter, with neither party being permitted to draw on the funds without the consent of the other or an appropriate order. The husband sought the dismissal of that application.
(d)The wife sought enforcement of orders for urgent spousal maintenance made [in] March 2021 referred to in more detail later in these reasons. The husband sought the dismissal of that application.
(e)The husband sought the retrospective discharge of the urgent spousal maintenance order with effect from 4 May 2021, whether pursuant to the slip rule, inherent jurisdiction, or the exercise of the court’s discretion not to enforce its own orders.
(f)The husband sought an order requiring the wife to pay 50 per cent of the monthly mortgage payments outstanding on the former matrimonial home in [Suburb G]. The home was sold earlier in the proceedings, but there remained a shortfall following sale. The wife opposed that application.
(g)The husband sought detailed orders for disclosure. No submissions were made by either counsel addressing that aspect of the application.
Relevant background
5The parties began their relationship in 2011, were married in September 2014, separated in December 2020, and have been involved in proceedings in this Court since 13 January 2021. By his amended application filed on 24 January 2022, the husband sought final orders for equal shared parental responsibility and for the children to live equally with each parent. By her amended response filed on 29 March 2021 the wife sought final orders for sole parental responsibility, for the children to live with her and spend time with the husband, and for her to be permitted to relocate with the children to live in [State A]. Neither party has further amended the final relief sought.
6The husband is a [medical professional]. The wife does not work outside the home. The care arrangements for the children until recently, including prior to separation, reflected that circumstance, albeit the parties had engaged paid assistance in that care.
7Interim orders were made by consent on 10 February 2021 for the children to spend time with the husband in a fortnightly cycle each Sunday from 9.00 am to 4.00 pm and each alternate Monday, Wednesday, and Thursday from after school until 6.30 pm. Initially, that time was to be the subject of supervision by the maternal grandmother and members of his family because of allegations that had been raised by the wife. The husband denied that there was any need for supervision but consented to that condition to avoid delay in spending time with the children.
8The supervision arrangements were varied by order on 3 March 2021 and other conditions related to the maternal grandmother were imposed, because of allegations raised by the husband. An interim hearing was scheduled for 4 May 2021 and orders made directed to the proper preparation of that hearing.
9[In early] 2021, for reasons given ex tempore and subsequently published to the parties, I dismissed the husband’s urgent application filed on 19 March 2021 in which he sought orders for Child B (who was attending kindergarten at School B) to take up a place at School C from the commencement of term two on 20 April 2021. I incorporate that judgment into these reasons.
10On the same day, an order for urgent spousal maintenance was made in circumstances where it was contemplated that matters relating to interim parenting and financial arrangements would be fully argued at the scheduled hearing on 4 May 2021.
11On 3 May 2021, interim orders were made by consent for the children to spend unsupervised time with the husband, progressing to alternate weekends from after school Friday until the commencement of school Monday and overnight on the intervening Wednesday. The consent orders also provided for the parties to participate in family therapy.
12The scheduled interim hearing on 4 May 2021, which was still to deal with financial matters, did not proceed as the parties had not complied with the orders made for its preparation. On 21 October 2021 the solicitors for the wife sought a relisting; on 10 November 2021, procedural orders were made to facilitate an interim hearing on 28 January 2022, following the attendance of the parties at a full day conciliation conference on 25 January 2022.
13On 27 December 2021, while the children were in the care of the husband, the wife suffered a [significant medical episode] while at Holiday Town D. She was subsequently hospitalised and the children remained in the care of the husband.
14On 20 January 2022, the wife filed an application seeking the return of the children to her care by 4.00 pm on 28 January 2021, that a recovery order issue if necessary, and that the orders of 13 May 2021 be suspended for a period of eight nights and then resume. On her case, set out in an affidavit sworn on 18 January 2022, she had largely recovered from the medical episode, but the husband declined her requests to return the children to her care and was only prepared to permit her to spend very limited time with them under his supervision.
15On 24 January 2022 the husband filed an amended application as noted above. While maintaining that final orders for equal shared parental responsibility and equal time should be made, on an interim basis he sought sole parental responsibility (albeit with a requirement to consult), that the children live with him, and that subject to a negative hair follicle test being produced by the wife, the children then spend time with her in the same terms upon which they had spent time with him pursuant to the orders of 3 May 2021. Having filed an affidavit on 14 January 2022 prior to the filing of that amended application, he filed a further affidavit on 27 January 2022.
16On 28 January 2022 I made orders requiring the wife to undergo hair follicle testing for a three-month period within seven days. The testing was to detect ecstasy, cocaine, amphetamines, methamphetamine, cannabinoid, and alcohol consumption. I ordered that until the test results were returned, the children continue to live with the husband and spend time with the wife, but that once the test was returned and if it showed no illicit drug use, the children were to be returned to the wife’s care and the orders of 3 May 2021 would thereafter remain in force. I made further orders directed to the provision of a report by the Single Expert Witness ("SEW") by 23 February 2022 and adjourned the proceedings for further hearing on 4 March 2022. My reasons for making those orders were published from chambers [in early] 2022 and I incorporate them in these reasons.
17The report of the SEW was received by the Court on 24 February 2022 and published to the parties on 25 February 2022.
18The wife’s test results were negative for drug use. Alcohol consumption was not tested, notwithstanding the clear terms of the relevant order.
Affidavits relied upon by the parties
19The husband relied on his case information affidavit, affidavits filed on 14 and 27 January 2022, and his financial statement filed on 24 January 2022.
20The wife relied on her affidavits filed on 30 April 2021, 14 October 2021 and 20 January 2022, an affidavit of her lawyer filed on 30 April 2021, and her financial statement filed on 14 October 2021.
21The ICL relied on the affidavit of the SEW annexing the report referred to above.
22Both parties filed written submissions prior to the hearing. The ICL made submissions at the hearing, limited to matters of contention in the parenting case.
The parenting case
The relevant legal principles
23The parties were married. The proceedings fall to be determined pursuant to the Family Law Act 1975 (Cth) ("the Act"). The court must be guided by the objects of Part VII of the Act and the principles underlying them.
24In determining what is in a child’s best interests, the court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.
25The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[1] I record that I have considered each of the primary and additional considerations in the context of the matters actually in dispute, the evidence of each party, and the submissions made.
[1] Banks & Banks (2015) FLC 93-637.
26The circumspection with which findings on an interim hearing must be couched is well-established and remains "no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence".[2] That said, in interim proceedings the court is frequently required to "weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected".[3] Evidence may not simply be "disregarded" merely because facts are in dispute, leaving the interim determination to be made "solely by reference to the agreed facts."[4]
[2] SS & AH [2010] FamCAFC 13, [88].
[3] Ibid, [100].
[4] Eaby & Speelman (2015) FLC 93-654, [18].
27As noted, when the question of Child B's schooling was last determined, schooling disputes are not resolved by the application of any "blanket presumption" or even preference for the views held by either parent with whom the children might primarily live. The court is required to apply the objects and principles of Part VII of the Act and the relevant statutory criteria in forming conclusions about the child’s best interests.[5] Again, I record that I have considered each of the primary and additional considerations in the context of the schooling dispute.
[5] Re G Children’s Schooling (2000) FLC 93-025.
28Even when schooling disputes are being considered at trial, where conflicting evidence can be tested, the court should not generally attempt to assess the relative merits of the schools preferred by the parties, particularly in circumstances where each is prima facie satisfactory. Ordinarily, a child’s best interests will be served by attending a school which is conveniently located; it is also proper to consider evidence as to any greater effect of the choice of school on the parent with whom the children primarily live by comparison to the other parent,[6] but that does not mean that the convenience of the other parent is to be ignored.[7]
[6] Ibid, [92]-[93].
[7] Eden & Eden-Proust [2011] FamCAFC 138, [56]-[63].
29There is, as has been noted,[8] some divergence in the authorities as to the extent to which any prior agreement between the parties concerning the child’s schooling is influential on the determination to be made once they no longer agree.
Interim parenting disputes – discussion and conclusions
[8] Bilz & Breugelman [2013] FamCA 578.
30As permitted by s 69ZL my reasons in relation to the interim parenting disputes are in short form.
31It may first be noted that the SEW describes Child A as a "delightful, confident, inquisitive and highly intelligent child", who is well mannered, has good self-esteem and appropriate psychosocial skills. He was observed to be interactive and responsive with both parents and to enjoy that interaction in playing with them.
32Similarly, the SEW described Child B as a "delightful, confident and highly intelligent child" who was able to express herself and was well spoken for her age. She was well-mannered, with good self-esteem and appropriate psychosocial skills and, like Child A, enjoyed playing and interacting with her parents and was interactive and responsive with both.
33Despite the criticisms the parties level at each other, Child A and Child B are clearly developing well and being well parented. The challenge for the parties will be to maintain that and to continue their efforts to shield the children they both love from the increasing conflict between them.
The commencement of an equal time arrangement
34An interim order for equal shared parental responsibility has been made by consent. The mandatory considerations required by s 65DAA are triggered; even were they not, the parties agree that it is in the best interests of the children to move to an equal care arrangement. That agreed position stands in some contrast to the written submission on the part of the husband on 21 January 2022 that shared care "is impracticable due to the mother’s inability to prioritise the children’s needs over those of her own (sic) and her inability to recognise that the benefit to the children of having a meaningful relationship with their father should be prioritised over the mother’s animus towards the father". It also stands in contrast to the allegations raised by the wife in her earlier affidavit material that the husband had been violent towards her and towards the children; those allegations have been consistently denied.
35The present disagreement is only as to when the agreed shared care arrangement should commence.
36The arrangements for the children both before and after the wife’s [medical episode] have been detailed previously and do not need to be repeated. It is sufficient to note, as the SEW observed, that the husband "stepped up" and cared for the children entirely appropriately in a time of need, refuting concerns the wife had previously expressed as to his capacity to do so. The SEW regarded that as supportive of an ongoing equal care arrangement, which he described as being "likely to be more positive and beneficial for the children as it can minimise exposure to parental tensions, stresses and direct conflict". Indeed, at the time of his report the SEW favoured the children remaining in the primary care of the husband while the wife continued her recovery from her medical episode.
37In circumstances where the wife agrees that an equal time arrangement is in the best interests of the children, no persuasive submissions were made on her behalf as to why the commencement of that arrangement should be deferred until the start of the 2023 school year. Rather, reference was simply made to the ages of the children and the disruption which occurred following the wife’s medical episode. The wife proposed that the current arrangements be varied "to accommodate the father having a five-night successive period with the children", without identifying any suggested benefit to the children from such an arrangement compared to a week about arrangement.
38The ICL supported an immediate move to a week about arrangement.
39Taking into account all of the evidence, the opinion of the SEW, and the submissions made, I conclude that it is in the children’s best interests for the agreed week about arrangement to commence immediately.
School holidays, Easter and Christmas
40Having proposed that a week about living arrangement for the children during school term should not commence until the commencement of the 2023 school year, primarily by reference to the children’s ages, the wife then proposed orders in relation to the summer school holidays at the end of 2022 which would simply divide those holidays into two blocks, with the children spending approximately four consecutive weeks in the care of each parent. The submission in support of that proposal was limited to the proposition that it would allow each party to holiday with the children, including interstate, more conveniently.
41The husband proposes that the week about arrangement, which is now to be put into place, should simply continue through school holidays.
42As will be seen, I do not propose to continue the injunctions restricting travel of the parties with the children within Australia. It is entirely understandable that during the summer school holidays the wife would wish to have the opportunity to take the children on a holiday to see her family in [State A] if possible; the husband may or may not wish to take a similar opportunity to holiday with the children, whether by visiting family in [City H] or otherwise.
43The wife’s proposal would, in my view, involve the children spending too long away from one parent while in the care of the other for some four weeks. That said, the husband’s proposal would not readily facilitate the taking of holidays which would otherwise be entirely reasonable.
44I am not bound to simply choose between the proposals of the parties, where the making of a different order is obviously open on the known material.[9] Particularly in circumstances where both parties are represented by experienced practitioners, it was clearly to be anticipated that orders might be made to facilitate each party taking a holiday with the children during the summer school holidays, without adopting the simplistic approach of dividing those school holidays into two long equal blocks. Indeed, in oral submissions counsel for the husband (while proposing that the week about arrangement simply continue through school holiday periods) said that arrangement "should operate with the parties at liberty to agree holidays for multiple weeks at a time".
[9] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [9] per French CJ and Kiefel J.
45I propose to make orders enabling each party to take the children away for a holiday for not more than two weeks should they elect to do so, with appropriate notice being given to the other party, and ensuring that the nominated period does not interfere with Christmas. The birthdays of the children and of each party fall outside the summer school holiday period and need not be accommodated in the orders. The week about arrangement will otherwise continue throughout school holiday periods.
46I accept the submission of the ICL that it is in the children’s best interests to be able to spend time with each parent over the Christmas period. The husband’s implied proposal that those special occasions simply "fall as they may" within the regular routine and the wife’s clear proposal that the children spend the whole of Easter and Christmas with one parent or the other in alternating years do not, in my view, acknowledge the potential importance to the children of seeing both parents on such occasions. That is particularly so on an interim basis; I accept that it may be that when the evidence is tested at trial a different arrangement may be shown to be preferable. In the short term, no specific arrangements for Easter are required, given the timing of school holidays.
47I propose to make orders in the terms broadly outlined by the ICL in his submissions.
Injunctions relating to travel
48It is convenient to deal with this matter next. As already noted, the husband in effect proposes a continuation of the interim injunction made on 10 February 2021 restraining both parties from removing the children from the Perth metropolitan area. The wife proposes the injunction be discharged.
49It may first be noted that the injunction was granted by consent but without admission at the first return date and before the wife had filed any documents. It was made against the background of the initiating documents filed by the husband including a notice of child abuse or risk of child abuse, his assertions that the children were at risk in the wife’s care by virtue not only of exposure to conflict and violence between her and her sister, but also the wife’s mental health more generally, and his expressed concern that the wife might take the children to live with her in [City F] without notice and without his "permission". At that time, the husband sought urgent orders for the children to live with him and spend time with the wife from 8.00 am to 6.00 pm on each of Monday, Tuesday, Thursday, and Friday, and from 2.00 pm to 6.00 pm each alternate Sunday.
50Clearly, circumstances have significantly changed. It is now the husband’s position that the parties should have both equal shared parental responsibility and an equal shared time arrangement. The question fairly arises as to why, in those circumstances, he would assert that the injunction remains necessary.
51At the hearing, the submission made on his behalf in that regard was in the following terms:
"[W]e would seek that the injunction upon the children being removed from the Perth CBD (sic) remain simply because it was agreed by consent and it should be there. Our concern is that there have been – the father alleges numerous breaches of that, particularly in relation to taking the children to [Regional Town E] and there being fires down there. And, essentially, he says the children should not be taken that far out of the State – far out of Perth without the consent of either party, and we say that that’s a reasonable position".
52No persuasive evidence is adduced in either of the husband’s affidavits filed on 14 January 2022 and 27 January 2022. The husband’s primary complaints appear to be that the wife had "on many occasions" taken the children to Holiday Town D or to [Region E] without his "knowledge or consent", including going to Holiday Town D on a school day, and that she had failed on one occasion to hand over the children for scheduled time with him because she spent an extra night at Holiday Town D.
53At the time the injunction was initially made, and on the evidence then before the court, it was proper. Since then, the parties have agreed to interim orders for equal shared parental responsibility, and for the children to live with each of them equally, including during school holidays (subject only to the timing issues already referred to).
54There is no proper basis articulated for the injunction restraining the parties from removing the children from the metropolitan area to continue. Similarly, no explanation is proffered to support the proposition that (by way of example only) the children should be able to go to Holiday Town D, but not to Regional Town E.
55That said, it is appropriate for there to be limitations on the ability of the parties to travel interstate with the children on an interim basis. It is appropriate for each party to have the opportunity to take one briefly extended holiday with the children over the summer school holidays, as already noted, and otherwise only to undertake travel which would not interfere with the time during which the children are to otherwise live with the other parent. For the same reason, it is appropriate that both parties be restrained on an interim basis from taking the children overseas without the consent of the other parent.
56I propose to discharge the existing injunction and make an injunction in the terms just described.
Child B's schooling
57It is unnecessary to repeat the matters set out in my judgment of [early] 2021, which is already incorporated in these reasons. It is also unnecessary to consider whether it is properly open to the husband to re-agitate his application for Child B to change schools on an interim basis, bearing in mind that what is generally described as the rule in Rice v Asplund[10] relates to applications made after final orders have been made.
[10] Rice v Asplund (1979) FLC 90-725.
58That is so as, even accepting the husband’s evidence at its highest, I am not persuaded that it is in Child B's best interests to change schools at this point.
59In evidence and submissions, the husband pointed to Child B having had "five non-attendance events" in 2021 and having left school early on eight occasions, saying that was "indicative of a concern". He referred also to Child A having 15 absences in his first year at school. No further detail was given, but the implication was that the wife struggles to get both children to school on time and is less focused on the children’s education than is the husband.
60The obvious difficulty with the husband’s submissions is that, while School A and School C are [in close proximity] to each other, School B is only a short distance away. If there are in fact difficulties with the timeliness of the children’s school attendance while they are in the care of the wife, it is unlikely that they are simply related to geography.
61The further difficulty, as pointed out by counsel for the wife, is that exhibited to the husband’s affidavit filed on 14 January 2022 is a statement from School A showing Child A's attendance rate at 96 per cent and a letter from School B to the ICL dated 17 December 2021 saying that there was "no concern over Child B's attendance".
62The husband states that he lives in rental accommodation near to the schools but does not descend to detail. His employer is based in [Suburb I], although I acknowledge he may well undertake work elsewhere. The wife is renting accommodation [in Suburb J]. Both parties presently live within reasonably close proximity of the children’s current schools.
63The husband gives evidence as to before and after school arrangements at the different schools. While there are differences, nothing turns on them.
64In a different context, the husband emphasises the need for stability in the children’s lives particularly on an interim basis. How that sits with the proposition that Child B should change school midway through the year is not at all clear.
65I accept that it would be more convenient if Child B attended School C, at least while Child A is attending School A. It may well be that a change is ordered at trial, when all relevant evidence can be tested, or that the parties agree that a change should be made at the end of the school year.
66I am not persuaded, however, that a change should be ordered on an interim basis. That is particularly so when the letter from School B included the observation that Child B was "generally happy when she transitioned into class and during the school day, participating in all activities fully" but also that at times she "was eager to develop relationships, however had difficulty connecting with her peers" and was supported by staff to "problem solve these challenges". She was also noted to at times frequently seek adult reassurance and validation.
67I do not propose to make the order sought by the husband.
Vaccination
68This matter may be shortly dealt with. The wife did not consent to the order proposed by the husband but did not actively oppose it. I propose to make the order sought. While the parties are to have equal shared parental responsibility on an interim basis, the husband’s proposal that as a [medical professional] he make the decision as to which vaccine is most appropriate for the children is appropriate. That should not be misunderstood; at times during the course of the litigation to date submissions have been made on the half of the husband purporting to rely on his professional expertise in relation to matters in issue. By way of one example only, in a letter sent by his solicitors on 13 January 2021 seeking an urgent listing, reliance was placed on his opinion that the wife and her sister appeared to "meet the diagnostic criteria for borderline personality disorder". Further examples arose in the husband’s evidence as to the possible or likely causes of the wife’s medical episode.
69For obvious reasons, parties cannot give expert evidence in their own proceedings. Independence and objectivity are critical to the admissibility of opinion evidence by virtue of expertise. The matter having been squarely raised in these reasons, it is to be hoped that there will be no repetition. If expert evidence as to medical issues is relevant for the purposes of trial, it must be independent, adduced appropriately, and in accordance with the Family Court Rules 2021 (WA) ("the Rules").
Testing for alcohol use
70This matter may be dealt with very shortly. The orders of 28 January 2022 required the wife to undertake hair strand testing for the presence of specified substances, including alcohol. For reasons which have not been explained, she undertook testing for drug use only. She has not complied with the order already made and the order now sought by the husband does no more than require her to do so.
71I propose to make the order sought.
Injunctions relating to the wife’s sister
72The wife and her sister Ms C have a complicated relationship. On the husband’s evidence, Ms C demonstrated very disturbing behaviour in 2016 and 2017 at the then home of the parties, once "scaling" a high-rise balcony after an argument with the wife and on another occasion holding a kitchen knife to her own throat. In more recent times, the wife and Ms C have engaged in heated disagreements, involving swearing and abusive language. On the husband’s case there have also been acts of physical violence between them.
73The difficulties associated with that relationship were apparent well prior to separation. They extended to the point where the husband engaged a lawyer to write to Ms C and her husband seeking to insist that they not look to stay at the home of the parties during a proposed visit in December 2020, when he and the wife could not agree on that point.
74On 4 May 2021, the husband obtained an interim Family Violence Restraining Order ("FVRO") against Ms C, with the children as the persons protected. On 14 September 2021, when Ms C did not take the necessary steps to participate in the defended hearing, the FVRO was made final. It is common ground that the FVRO will expire in May of this year and that while Ms C presently lives in City F, the removal of border restrictions makes it likely that she will seek to visit Western Australia.
75The husband seeks to prevent the children being exposed to conflict between the wife and Ms C. The wife describes Ms C as being an important source of support to her, while not initially denying the volatile nature of their relationship. She would say that the children have a good relationship with Ms C. She opposes the making of the injunction. The ICL’s position was somewhat equivocal; he was concerned that an injunction "restraining the children from having any meaningful relationship with their aunt" would be inappropriate and suggested that some form of restraint might be applied restraining the wife from exposing the children to arguments, violence, and the use of profanities.
76The SEW interviewed both parties and Ms C. In his report he summarised the husband’s concerns, noting also that he was in receipt of an email from Ms C's husband which lent some support to the husband’s observations as to the daily contact between the sisters and the impact of that on the families of both. The wife and Ms C denied any physical violence between them. Ms C said that she and the wife argued, but do not physically or verbally abuse each other; the wife said that she and Ms C "never argue". The wife regarded the husband’s expressed concerns about Ms C as being an attempt on his part to exert control over her. The SEW described the question of whether the wife and Ms C argue and can be aggressive towards each other as remaining "an open question".
77That said, the SEW also noted the provision by the husband of copies of "many abusive texts between the [wife] and Ms C demonstrating abusive language". The denials of the wife and Ms C may fairly be viewed with some scepticism in those circumstances. They may also be viewed against the background of the wife’s earlier evidence that when she and Ms C have a disagreement they are "direct and honest about [their] respective positions and at times… use swear words and unpleasant language".
78Section 60CC(3)(k) requires me to take into account any relevant inferences that can be drawn from a FVRO applying, or having applied, to the child or a member of the child’s family. While I acknowledge the evidence as to Ms C's failure to fully participate in the final hearing in the Magistrates Court, nevertheless in making the final FVRO that court was required to be satisfied that the children had been exposed to family violence on her part, or there were reasonable grounds to apprehend that they would be so exposed. It is not suggested that Ms C did not participate at all in the final hearing, nor accordingly that the final order was made simply by reference to the provisions of s 42 of the Restraining Orders Act 1997 (WA).
79On balance, I am satisfied that the injunction sought is proper and in the best interests of the children. Even allowing for the untested nature of the evidence, the matters just outlined satisfy me to the requisite degree that the children would be at risk of being exposed to family violence as broadly defined by s 4AB, or at the very least heated and potentially frightening verbal altercations, including the aggressive use of profanity, if they spend time with the wife and Ms C together. When that risk is balanced against the fact that Ms C is presently in City F in any event, and that it will be open to the wife to spend time with Ms C other than in the presence of the children, the protective benefit to the children outweighs any prejudice to the wife.
Injunctions relating to handover
80While on the papers the husband sought an injunction restraining the parties from involving any third-party in handover, in submissions his counsel acknowledged that the difficulty sought to be addressed related to attendance at handover by Ms C or the maternal grandmother only.
81The observations just made in relation to Ms C need not be repeated. Issues relating to the maternal grandmother have been the subject of previous disputes between the parties, in particular at a hearing before the Chief Judge on 3 March 2021. In her reasons given that day, her Honour noted that it was common ground that following the orders made on 10 February 2021 for joint supervision of the children’s time with the husband by the two grandmothers, "ugly disputes and unseemly incidents" had occurred "on a regular basis during handovers and during the [husband’s] time with the children". On the husband’s case, at that point, the maternal grandmother behaved in an aggressive and hostile manner towards him and subsequently requested that the police conduct a welfare check on the children. On the wife’s case at that point, the husband had physically assaulted the maternal grandmother. Her Honour concluded that there was an "unacceptable risk that the children will be exposed to ongoing conflict if the maternal grandmother is permitted to have any involvement at all in the handover arrangements" and made orders accordingly.
82As tacitly conceded by counsel for the husband, no proper basis is established for a wide-ranging injunction restraining the parties from being accompanied by any third-party to handover. That said, I am comfortably satisfied that it is in the best interests of the children for restrictions to be imposed so as to avoid any potential contact in the presence of the children between the husband and the maternal grandmother or Ms C. I note that an injunction in those more limited terms was supported by the ICL. The risk of conflict, and potentially aggression, in the presence of the children is clear and for present purposes it matters not which of the adults might eventually be found to be more likely to engage in aggressive or inappropriate behaviour.
Other injunctions
83The husband otherwise sought the further detailed injunctions summarised earlier in these reasons.
84I note firstly that there is already in place an interim order, made by consent, requiring the wife to ensure that the children are put to bed each night at between 7.30 pm and 8.00 pm. Neither party referred to that order in their submissions and neither sought that it be discharged.
85Otherwise, in circumstances where he agrees that the parties should have equal shared parental responsibility, and that the children should spend equal time with each parent, there is an implicit acceptance by the husband as to the competence of the wife’s day to day parenting whether or not it differs in style or detail from his own.
86The wife’s counsel submitted that injunctions seeking, for example, to further regulate the children’s bedtime when they are in the care of the wife, dictate that they should sleep in their own beds, and to prevent her from having other people stay at her home (and not just Ms C) are "oppressive, unnecessary, controlling, and without evidentiary basis". In short, I accept that submission.
87It is not for either party to micromanage the parenting of the other. Equally, it is not for either party to suggest that he or she should have a right of veto as to with whom the other party associates, or who they have in their homes. Unless evidence is adduced of risk (as, for example, in relation to the orders sought regarding Ms C and the maternal grandmother) neither party should presume to dictate to the other how they should parent, or how to conduct themselves more generally.
88I do not propose to make the further injunctions sought.
The financial case
Enforcement, discharge, or variation of the order for urgent spousal maintenance
89It is appropriate to deal first with the dispute between the parties as to the urgent maintenance order made [in] March 2021, as the resolution of that dispute potentially informs the other matters requiring determination.
90The order in question required the husband to pay "until further order of the court and by way of urgent spousal maintenance" the costs of the wife’s rental accommodation up to the value of $1,000 per week, removalist costs for her move from the former matrimonial home (which was being sold) to her rental accommodation, and her bond for that rental accommodation. The order was made pursuant to s 77. The outstanding interim and interlocutory disputes which were to be defined by minutes required to be filed pursuant to orders made the same day, and by conferral which had been previously directed, were listed for hearing and determination on 4 May 2021.
91I have incorporated my ex-tempore judgment delivered [in early] 2021 in these reasons. As noted in that judgment, the documents in which the wife sought spousal maintenance for the first time were served on the husband’s lawyers only the day before the hearing. At that point (while an urgent order was sought) no order for interim maintenance was sought.
92The parties then failed to comply with the orders and directions which had been made to ensure the readiness of the matter to proceed to the listed interim hearing on 4 May 2021. The hearing was vacated and the parties were given liberty to request the allocation of a further interim hearing upon complying with the relevant orders and directions. No request for a relisting was received until the solicitors for the wife wrote to the court on 21 October 2021.
93In short, the husband submits that the urgent maintenance order was only ever intended to address the then identified immediate need on the part of the wife, in circumstances where it was anticipated that any argument as to interim spousal maintenance would occur at the hearing listed on 4 May 2021. As the hearing on 4 May 2021 did not proceed, the matter was not agitated on that day as had been anticipated.
94That point is properly made, albeit the tenor of the husband’s complaints about the vacation of the hearing, and that the parties were "not heard" on that decision, ignores the joint responsibility of the parties for that circumstance by virtue of their failure to comply with clear directions and orders which had been made. Bluntly, if parties or their solicitors choose to ignore orders which are made to ensure that genuine interim disputes can be determined in a manner which makes efficient use of the court’s limited resources, they cannot be heard to complain if those resources are allocated elsewhere.
95The husband seeks to address the legitimate issue raised in one of two ways. First, he suggests that the order of March 2021 should be amended retrospectively to delete the words "until further order of the court" and to expressly time limit the order to the period 31 March 2021 to 4 May 2021. He seeks the deletion of reference to payment of the wife’s rental bond on the same basis. Alternatively, he proposes the discharge of the order pursuant to s 83(1)(c). He argues that it was never the intention of the court for the order to extend beyond the scheduled hearing on 4 May 2021, and that as it transpired, the wife did not obtain rental accommodation until 12 May 2021. He otherwise makes reference to his financial circumstances and to efforts which he says he made to assist the wife in locating rental accommodation. It is common ground that he paid the wife’s removalist costs but did not pay bond or rent.
96The wife seeks enforcement of the order. She argues that the wording of the order is clear, that the husband did not appeal against it, and that he did not file any urgent application seeking to vary it. She submits that the order was, by its terms, to continue "until further order" and that accordingly arrears have accrued and continue to accrue unless and until it is discharged.
97That submission glosses over the acknowledgement by the wife’s counsel at the hearing [in early] 2021 that the order then sought could not be proposed to extend beyond the scheduled next hearing of the matter, at which any properly articulated issues as to interim financial arrangements could be argued and determined. It also glosses over the clear references both during exchanges at that hearing, and in the reasons given, to the "very short-term nature of the orders sought" and the "proximity of the next hearing".
98I acknowledge that the situation now faced would have been avoided had the order been expressed more clearly. It would also have been avoided if the parties had complied with the orders and directions earlier referred to, so that the hearing on 4 May 2021 could have proceeded as scheduled.
99The clear intention was that the order remain in force only until that hearing. Indeed, as earlier noted, it could not have been otherwise as there was no application for interim spousal maintenance on foot at the time the order was made.
100Apart from the approaches proposed by the husband, it is well settled that a court exercising jurisdiction under the Act has the discretion to refuse to enforce one of its own orders.[11]
[11] Ramsay & Ramsay (1983) FLC 91-301.
101As will be clear from what has already been observed, I am comfortably satisfied that it is appropriate for that discretion to be exercised in favour of the husband. The order will be discharged with effect from 4 May 2021 and I decline to otherwise enforce it.
The wife’s application for interim spousal maintenance
The relevant legal principles
102Section 72(1) provides that a "party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support him herself or himself adequately... having regard to any relevant matter referred to in s 75(2)".
103Any such liability is then "crystallised by the making of an order under s 74(1)"[12] which provides that the court may make such order as it considers proper.
[12] Hall v Hall (2016) 257 CLR 490, 81,450 [4].
104In exercising the power conferred by s 74(1), the court is required to take into account only those matters referred to in s 75(2).
105The consideration of the capacity of a party to self-support "adequately" does not refer to support merely at a subsistence level. Adequacy is not to be determined according to any fixed or absolute standard, and where possible both spouses should continue to live after separation at the level which they previously enjoyed if that is reasonable and the resources available to them are sufficient to maintain that standard.
106It is not necessary for an applicant to "use up all capital" in order to satisfy the requirement of an inability to self-support adequately. That said, an applicant is not entitled to live at a luxurious level simply because the respondent is very wealthy.[13]
[13] Brown & Brown (2007) FLC 93-316.
107On an application for interim maintenance orders, "the evidence need not be so extensive and the findings not so precise"[14] as on an application for a final order, but the court cannot make such an order without finding on the balance of probabilities that the threshold requirement in s 72(1) is met, having regard to any relevant matter referred to in s 75(2).[15]
[14] Redman & Redman (1987) FLC 91-805, 76,081.
[15] Hall v Hall (2016) 257 CLR 490, 81,450 [8].
108The reference to "financial resources of a party" in s 75(2)(b) "must involve something more than the expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support". It refers to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency".[16]
The wife’s evidence and submissions
[16] Ibid, 81,456 [54].
109The wife says that she was not employed outside the home during the relationship, apart from making efforts to set up a [business] with her sister which, on the husband’s case, was a "disaster". She says that she "continues to undertake efforts in design" which was "the pursuit that she enjoyed during the relationship, albeit with limited financial success".
110The wife says further that when she met the husband, she was studying design at university in City F and [freelancing]. Since 2012, the parties have lived in various places in pursuit of the husband’s career advancement and qualifications. She says that she has not worked in either a full-time or part-time capacity since 2012, having been occupied as primary carer for the children prior to separation, and has no training other than her design studies and "ability as a [designer]".
111The wife says that during the relationship the husband met all household expenses and expenses for the children and provided her with about $400 per week for her personal expenses. She deposes to receiving significant financial assistance from her mother, totalling some $1,350 per week and to receiving $1,175 per week pursuant to income tested pensions and child support. She says that she receives no income from personal exertion.
112On the wife’s evidence, she has a rental expense of $1,050 per week, vehicle finance expenses paid by her mother in the sum of $293 per week, and her reasonable personal expenses otherwise would total approximately $1,080 per week if she could afford to meet them. Included in those claimed expenses are weekly expenses of $300 for food, $100 for clothing and shoes, $100 for entertainment and hobbies, $70 for holidays, $30 for gifts, $50 for her gym membership, and $70 for hairdressing and toiletries. The vehicle finance expenses relate to a motor vehicle being used by the wife, but which is registered in her mother’s name.
113The wife seeks interim spousal maintenance in the sum of $2,300 per week and says that by reference to the husband’s financial statement filed on 8 February 2021 he has a surplus available to him adequate to meet that payment. As will be seen, there is a relevant difference between the husband’s evidence as to his financial circumstances in February 2021 and his more recent evidence as set out in his financial statement filed on 24 January 2022.
The husband’s evidence and submissions
114The husband submits firstly that the wife has not satisfied the threshold requirement of establishing that she is presently unable for good reason to adequately support herself. At the same time, he submits that "it is not controversial that [he] made close to 100% of the direct and indirect financial contributions to the marriage", that the wife "did not work", and that her efforts at establishing a business amounted to a "failure that ended in losses of $200,000".
152The very significant discrepancy between the costs incurred by the husband and the costs incurred by the wife is not explained, although it may reasonably be inferred that the husband incurred costs in relation to his application for a FVRO against Ms C, which for obvious reasons would not correspond in costs incurred by the wife. That said, the FVRO proceedings were completed in September 2021 – they cannot account for the fees incurred since. In making those observations I acknowledge that the husband has paid for fees of mediators and the SEW, and that those expenses may be reflected in the unapportioned amounts shown in the costs notification.
153The factors required to be considered pursuant to s 117(2A) have, with one exception, been dealt with briefly above. That exception is s 117(2A)(c) - the conduct of the parties in relation to the proceedings.
154As I observed in the judgment delivered [in] March 2021, the approach taken to the proceedings to that date was both disorganised and unsatisfactory. The steps taken and costs incurred were also in many respects disproportionate to matters actually in issue. Both parties must bear some responsibility for that and for ongoing issues of similar nature.
155The wife says, in short, that she cannot afford to pay her lawyers and that her family are not prepared to advance further funds to enable her to do so.
156The husband says that neither party has the means to fund their own case without the assistance of relatives. Apart from the very considerable financial support already provided to the wife by her family by payment of her rent and provision of a motor vehicle, as well as other expenses, the husband says that in 2021 the wife also underwent non-essential cosmetic surgery again paid for by her family. He goes further to suggest that there is "significant doubt" as to his capacity to further seek assistance from family and that it is "more likely than not that the wife is in a stronger position to be supported by others" than he is. The evidentiary foundation for that submission is not identified.
157At the end of the day, the fact remains that the husband has managed to pay legal fees of some $182,500 and the wife has been unable to pay her own current lawyers more than $5,000. While the husband has very significant expenses as already noted, he also has a very significant income. He has not been hesitant in litigating, both in this court and elsewhere, nor for that matter in seeking to relitigate matters already argued.
158The purpose of a "dollar for dollar" order is to provide, to the extent possible, a level playing field between a litigant with access to funds and a litigant who has no such access. While both parties would prefer to be represented, it is of course possible that choices might be made to direct their funds elsewhere or for that matter that choices might be made to reduce other elements of their expenditure.
159In the meantime, I am satisfied that in the particular circumstances of this case, and noting the determinations already made in relation to other elements of financial relief sought by the wife, a dollar-for-dollar order is justified.
Other matters
160As earlier noted, no submissions were directed to the orders for disclosure sought by the husband. Accordingly, I do not propose to make orders for specific disclosure. Instead, the matters in issue between the parties having been clearly set out, I propose to simply order each party to file an undertaking as to disclosure annexing the relevant list of documents within 28 days. If any issues of specific nondisclosure arise after that step has been taken, the parties can address them in the appropriate way; they should do so in the first instance by recourse to the provisions of the Rules rather than by application so as to save both time and costs.
161Similarly, no submissions were directed to the application of the wife for an order requiring that any tax return credit paid to the husband by the ATO be paid into a joint account and thereafter held until divided by agreement or pursuant to any order. I do not propose to make the order sought.
162More generally, it is of course to be hoped that the parties will revisit the efforts they have already properly made to resolve their disputes without incurring further significant legal costs. It is to the credit of both parties that they have agreed that it is in the interests of the children for interim orders to be made for an equal shared care arrangement, notwithstanding their disagreement as to the time at which such an arrangement should commence. The property case between the parties should be capable of settlement – the wife needs to understand that the court has power only to alter interests in existing property and set her sights accordingly, while the husband needs to accept that regardless of his views as to the wife’s work ethic and the desirability of her seeking employment, she will never earn an income remotely approaching that which he is able to earn, and that any orders eventually made apportioning responsibility for liabilities between the parties will inevitably take that into account.
163That said, I propose as requested by both parties to include the proceedings in the defended list so that the matter may proceed towards a trial if that becomes necessary. I propose to order that inclusion with effect from 25 January 2022, the date on which the parties participated in a conference with Registrar French. I will also make the necessary orders for a readiness hearing and for the filing of trial materials.
Proposed orders
164Subject to any submissions as to form, and in addition to the orders already made by consent on 4 March 2022, I propose to make the following orders:
1.The parties do all acts necessary to ensure that the children receive all recommended COVID-19 vaccinations including but not limited to a booster shot(s) as recommended by the Western Australian Health Department, with the husband to determine the COVID-19 vaccine type and take the children to their scheduled vaccination appointments.
2.Commencing immediately, until further order the children live with the parties on an equal shared care basis in a week about arrangement, with handover occurring each Friday after school.
3.The living arrangements in the immediately preceding order continue through the school holidays at the end of terms one, two and three each year.
4.The living arrangements set out in paragraph 3 of these orders continue through the summer School holidays subject to the following:
(a)the children are to spend equal time with each parent in the period from 9.00 am on 23 December until 5.00 pm on 27 December ("the Christmas period"), with handover to be at 1:00 pm on Christmas Day unless otherwise agreed;
(b)each party is at liberty to nominate one two week block in the summer school holidays during which the children are to be exclusively in the care of that parent for the purposes of a holiday provided that:
(i)the parties may not include the Christmas period in such nominated period; and
(ii)the required nomination by each party must be made by no later than the close of business on Friday, 28 October 2022.
5.The injunction contained in paragraph 13(a) of the orders made on 10 February 2021 is discharged, noting that the injunction contained in paragraph 13(b) of the said orders remains in force.
6.Until further order, the parties are each restrained by injunction from removing the children or either of them from the Commonwealth of Australia without the written consent of the other parent or an order of the court.
7.Until further order, the parties are each restrained by injunction from removing the children or either of them from the State of Western Australia other than for a holiday as provided in paragraph 4(b) of these orders, or with the written consent of the other party or an order of the court.
8.The wife must forthwith instruct Brassets to administer an alcohol test against the hair sample taken from her on 11 February 2022, with the husband to meet the costs of same.
9.In the event that the hair sample taken from the wife on 11 February 2022 is no longer viable for the purpose of the immediately preceding order, the wife must submit to a further hair follicle test for the purposes of alcohol testing, with the husband to meet the costs of same.
10.Until further order, the wife is restrained by injunction from encouraging or permitting her mother or [sister] to attend at any handover.
11.Until further order, the wife is restrained by injunction from allowing the children to be in the presence of her [sister] or permitting or encouraging other persons to do so.
12.The order for urgent spousal maintenance contained in paragraph 2 of the orders made [in] March 2021 is discharged with effect from 4 May 2021.
13.The application of the wife seeking enforcement of the said order is dismissed.
14.The application of the wife for interim periodic spousal maintenance is dismissed.
15.The application of the husband for an order requiring the wife to pay 50 per cent of the outstanding mortgage payments related to the former matrimonial home in [Suburb G] is dismissed.
16.The application of the wife for an order requiring the husband pay a lump sum of $30,000 towards her legal costs and for the transfer of funds presently held on trust is dismissed.
17.Until further order, the husband must instruct his solicitors to:
(a)issue him invoices every 30 days for any fees properly chargeable in relation to these proceedings; and
(b)instruct any counsel briefed in the matter to issue invoices at least every two months for any fees properly chargeable in relation to these proceedings.
18.Thereafter, on every occasion that the husband makes or causes to be made a payment to his solicitors and/or counsel, including to make any payment into his solicitors’ trust account, he must pay or cause to be paid to the wife’s solicitor a sum equal to each such payment.
19.Payments received by the wife’s solicitors pursuant to the immediately preceding order must be applied exclusively to payment of her legal costs.
20.All outstanding applications and responses insofar as they sought interim orders otherwise be and are hereby dismissed.
21.Within 28 days, each party must file and serve an undertaking as to disclosure in the usual form, annexing that party’s list of disclosed documents.
22.The proceedings are included in the defended list with effect from 25 January 2022, with an estimated hearing time of 4 to 5 days.
23.The parties and their lawyers, if represented, attend a Readiness Hearing before the Honourable Justice O’Brien on Monday, 3 October 2022 at 10.00 am.
24.By no later than 21 days prior to the date fixed for the Readiness Hearing, each party file and exchange with each other party:
(a)a single standalone affidavit setting out the whole of that party's evidence in chief for the purposes of the trial;
(b)an affidavit of each witness with no more than 5 annexures to each affidavit;
(c)a list containing the names of any proposed witness who has refused to provide an affidavit; and
(d)an up to date Form 13 Financial Statement.
25.By no later than 14 clear days prior to trial, or three days prior to any status hearing scheduled by the judicial officer to whom the trial is allocated (whichever is the earlier) each party must file and serve Papers for the Judge, in accordance with the Case Management Guidelines.
26.In the event that any party intends to make objections to any affidavit evidence:
(a)the objecting party must provide to the responding party, or that party’s lawyer, a schedule listing the objections raised (including the specific material about which the party objects and the grounds for the objection) no later than the close of business 14 clear days prior to the allocated first day of trial;
(b)the responding party must advise the objecting party as to which, if any, of the objections raised are conceded by no later than the close of business 7 clear days prior to the allocated first day of trial;
(c)the parties or lawyers/counsel for each party must personally confer by face-to-face meeting or telephone in an effort to reach agreement as to any remaining objections; and
(d)by no later than the close of Registry 2 clear days prior to the allocated first day of trial, the parties must file a joint schedule of all objections, identifying clearly those objections which are conceded, and the position of each party in relation to those which are not, with such schedule to also be emailed to the associate to the judicial officer to whom the trial is assigned.
27.By no later than 14 clear days prior to trial, or three days prior to any status hearing scheduled by the judicial officer to whom the trial is allocated (whichever is the earlier), the parties must file a joint schedule of assets, liabilities and resources vouched to the date of filing (or such other date as the parties jointly agree), such schedule to identify the areas where the parties agree or disagree.
28.No earlier than the allocation of the trial date but no later than 28 days before the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:
(a)the Applicant and the Respondent shall each pay 50% of the non-refundable setting down fee for a 5 day trial; and
(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.
29.No later than close of Registry 2 business days before the second and each subsequent hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:
(a)the Applicant and the Respondent shall each pay 50% of the hearing fee for that day of the trial; and
(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
8 APRIL 2022
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