CALLAHAM & CALLAHAM

[2020] FCCA 3094

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLAHAM & CALLAHAM [2020] FCCA 3094

Catchwords:
FAMILY LAW – Interim parenting – where Mother proposes to relocate with the children – consequential financial arrangements of the family – duty of disclosure in parenting cases – Mother’s claim for spousal maintenance.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B, 72, 74, 77, 114

Cases cited:

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4

Applicant: MR CALLAHAM

Respondent: MS CALLAHAM

File Number: WOC 1220 of 2020

Judgment of: Judge Altobelli

Hearing date: 21 October 2020

Date of Last Submission: 21 October 2020

Delivered at: Wollongong via Teleconference

Delivered on: 2 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Cook

Solicitors for the Applicant: Bowral Legal

Counsel for the Respondent: Mr Gould

Solicitors for the Respondent: Lagom Family Law

INTERIM ORDERS

1. Pursuant to s.72 and s.74 of the Family Law Act 1975, the Father shall pay, as and when they fall due:

   (a)All repayments in relation to the loan secured by way of mortgage registered on the title of the property situated and known as A Street, Town B in the State of New South Wales, being the whole of the land comprised in folio identifier (omitted) (‘the property’); and

   (b)All Council Rates and Water Rates in relation to the property.

2. On a without admissions basis, the Father will do all acts and things necessary to prevent any physical discipline of the children X (born 2013) and Y (born 2015) (‘the children’)  whilst in his care.

In the event the Mother does not obtain employment or obtains employment that allows for her to continue to reside in the property on a substantially full-time basis when she is not rostered on in the course of her employment:

1. The Mother retain exclusive occupancy of the property.

2. The children shall live with the Mother in the property.

3. The children spend time with Father as agreed between the parties and failing agreement as follows:

   (a)Each alternate week from the conclusion of school or if it is not a school day from 3:00pm Wednesday afternoon until the commencement of school or if it is not a school day until 9:00am Monday morning;

   (b)for one half of all mid-year school holiday periods as agreed and failing agreement, for the first half of all school holiday periods in even numbered years and the second half of all school holiday periods in odd numbered years and at all other times with the Mother; and

   (c)for one half of the Christmas school holiday period as agreed and failing agreement, for the first half of all school holiday periods in even numbered years and the second half of all school holiday periods in odd numbered years and at all other times with the Mother.

In the event the Mother obtains employment that does not allow for her to reside in the property on a substantially full-time basis when she is not rostered on in the course of her employment:

1. The children live with the Father in the property.

2. The Mother is to spend time with the children in the property as follows:

   (a)The Mother is to provide her monthly roster to the Father within 48 hours of the roster becoming available to her.

   (b)The Mother is to then nominate within 5 days of the roster becoming available to her the times and dates that she will spend time with the children in the property.

   (c)The children will spend time with the Mother during the NSW school holiday periods as agreed between the parties in writing and failing agreement as follows:

   (i)In each odd numbered year for the first half of the school holiday periods at the conclusion of terms 1, 2 and 3, commencing on the Saturday after the final day of the school term and concluding at 6:00pm on the middle Friday of the school holiday period; and

   (ii)In each even numbered year for the second half of the school holiday periods at the conclusion of Terms 1, 2 and 3, commencing at 6:00pm on the middle Friday of the school Holidays and concluding at 12:00pm on the Sunday immediately prior to the commencement of the next school term.

   (d)During the long summer school holiday period (Term 4), the children shall spend time with the Mother as follows:

   (i)In each even numbered year from the Saturday after the conclusion of Term 4 until 5:00pm on the midpoint of the school holiday period; and

   (ii)In each odd numbered year from 5:00pm on the midpoint of the holiday period concluding at 12:00pm on the Sunday immediately prior to the commencement of Term 1 of the school year.

   (e)On times and dates the Mother nominates the Father is to vacate the matrimonial home and during such period the Mother will have sole occupancy of the matrimonial home with the children.

   (f)On all other times an occasions as may be agreed between the parties, in the Town B area.

3. Subject to the times and dates the Mother spends time with the children, the Father will retain exclusive occupancy of the property.

FURTHER ORDERS:

1. Within 7 days and subject to the agreement of the Mortgagee, the parties shall do all acts and things and sign all documents necessary to cause the loan secured by way of mortgage on the property to be placed into hardship to allow for the following to occur:

   (a)The entirety of the mortgage payments be suspended for a period of not less than 3 months or for whatsoever period as can be accommodated for by the Mortgagee; and

   (b)Thereafter be changed from principal and interest to interest only.

2. The matter be adjourned to 2 February 2021 at 9:30am for Mention.

3. The Mother’s application for interim orders to the effect that she be permitted to relocate with the children to City C Queensland be dismissed.

NOTATIONS:

(A)The purpose of the Mention is to;

(a)Review the implementation of the interim orders;

(b)Review the personal circumstances of the parties; and

(c)Appoint an Independent Children’s Lawyer if necessary.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1220 of 2020

MR CALLAHAM

Applicant

And

MS CALLAHAM

Respondent

ORAL REASONS FOR JUDGMENT

1. These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These are short form Reasons for Judgment which explain the Orders that the Court has made on an interim basis in this case.  This case is about two children, X who will be 7 in December and his sister, Y, who will be 6 in January.

3. The Court has to decide on an interim basis where the children live both in terms of which parent and in terms of geographical location.  In addition, there were important consequential issues such as what time the children spend with the other parent and, depending on the Court orders, whether one parent should have exclusive occupation of the home to the exclusion of the other, and whether maintenance was payable by one spouse to the other.

4. The Applicant in this case is the Father.  He is 30 years old.  The Respondent is the Mother.  She is 41 years old.  At the moment they both live in Town B, a country town near the border between New South Wales and Victoria.  The parents met in 2010, married in 2013 and appear to have separated for the last time in 2019, but continued to live under the same roof until about August 2020.

5. The Father is a full-time technical specialist as well as a casual public servant.  The Mother is a part-time healthcare worker.  The impression created from the evidence is that both parents were heavily involved in the care of the children.  Because the Mother worked part-time and the Father full-time it is likely that she spent more time involved in the care of the children.

6. Both parents contended they were the primary carer for the children.  This was an unhelpful exercise and an arid debate to have in the context of an Interim Hearing.  The totality of the evidence before the Court enables it to form the strong impression that qualitatively even if not quantitatively both children had the benefit of high quality, active, sensitive, child-focused parenting until the relationship between the parents started to deteriorate.

7. This is a case where change for the parents and the children is inevitable.  The fact is that the former matrimonial home has been on the market for sale since September 2019 and continues to be on the market.  Both parents have formed new relationships since the end of their marriage.  A strong impression is formed from the totality of the evidence that a move from Town B is inevitable at some time.

8. The parents discussed their future arrangements.  That is common ground.  There is a dispute which cannot be resolved at an Interim Hearing about whether an agreement was reached and, if so, what were its terms.  The Mother contends there was.  The Father denies this.  In April 2020 it seems that the Mother began to apply for alternative postings with Employer D.  It is possible that the Father did likewise with Employer E.  Late in July 2020 the Mother received a posting with Employer D to Region F.  No later than 5 August 2020 the Mother became aware that the Father did not consent to the Mother relocating with the children.

9. Later in August 2020 the Father moved out of the family home into the nearby home of his mother, that is, the paternal grandmother.  The children continued to live with their mother and spend time with their father at least one or two nights each week.  The Father commenced the present litigation by way of an urgent Application filed 14 September 2020.  On that date, and based on the evidence that the Father had filed indicating that the Mother was imminently about to relocate with the children to Region F, the Court made ex parte Orders in terms of Order 3 made 14 September 2020. In short, the Mother was restrained from removing the children from the Town B area without the written consent of the Father.  The Mother was also restrained from removing the children from their respective schools without the Father’s consent and removing the children from the Father’s care without written consent.  These Orders were made ex parte but on the basis of the evidence filed by the Father. 

10. The Court observes with the benefit of hindsight, of course, that even taking into account the totality of the evidence before it now, it would have made exactly the same orders.  Indeed, the Court observes had those Orders not been made the Court is comfortably satisfied, again from the totality of the evidence, that the Mother would have relocated with the children notwithstanding what she knew or should have known was the Father’s opposition to this change in the children’s lives.

11. The matter first came before me for Interim Hearing on 6 October 2020.  Mr Cook of Counsel appeared for the Father and Mr Gould of Counsel of the Mother.  On the Mother’s application the Interim Hearing was adjourned to 21 October 2020.  Interim orders were made by consent for the children to spend time with their mother and for the Mother to have exclusive occupancy of the former matrimonial home.

12. The matter came before me for Interim Hearing on 21 October 2020.  Mr Cook and Mr Gould continued to appear.  The orders sought by the Father are set out in his case outline document filed 19 October 2020.  The same document sets out the material relied on, on behalf of the Father. In addition, there were a number of tenders. The aforementioned documents are set out below:

    a)Initiating Application filed on 14 September 2020;

    b)Affidavit of Mr Callaham filed on 14 October 2020;

    c)Affidavit of Mr Callaham filed on 11 September 2020;

    d)Affidavit of Mr Callaham filed on 25 September 2020;

    e)Affidavit of Mr Callaham filed on 25 September 2020;

    f)Affidavit of Ms G filed on 14 October 2020;

    g)Affidavit of Mr H filed on 14 October 2020;

    h)Affidavit of Ms I filed on 14 October 2020;

    i)Affidavit of Ms J filed on 25 September 2020;

    j)Affidavit of Non-Filing Family Dispute Resolution Certificate filed on 11 September 2020;

    k)Notice of Risk filed on 14 September 2020;

    l)Financial Statement of Mr Callaham filed on 14 October 2020;

    m)Tender bundle prepared on behalf of the Applicant Father (marked as exhibit A1); and

    n)Respondent Mother’s ANZ Bank Account Statements (marked as exhibit A2).

13. In short, the Father sought orders for equal-shared parental responsibility, for the children to live with him and for the children to spend time with the Mother in the family home in Town B on the basis that the Mother could spend as much time with the children as she wanted when she was not rostered to work.  During these periods the Mother and children would have sole occupancy. 

14. It is to be remembered that the Mother’s work as a healthcare worker is part-time.  The Father’s orders also provided for school holidays and special occasions.  Whilst it is not entirely clear, the basis of the Father’s orders seems to have been an assumption that the Mother would, indeed, take up the position as a healthcare worker as she had been offered at Region F in New South Wales but return home when she was not working.

15. And alternate basis of the Father’s proposal seems to be that the Mother would either retain her current position with Employer D in Town B or obtain another similar position elsewhere.  The evidence before the Court indicates that the Mother is still employed by Employer D, has, in fact, been posted to Region F, but is currently on leave without pay from that position. 

16. Her application for leave was in evidence.  The documents suggest that she applied for four weeks leave without pay which expires on 6 November 2020.  During the Interim Hearing her Counsel made it very clear to the Court that the Mother would not be relocating without the children and, thus, if an order to that effect was made presumably she would not take up the position in Region F. 

17. The orders sought by the Mother became exhibit R2 tendered at the Interim Hearing.  To adopt the terminology used by the Mother’s Counsel, Mr Gould, “plan A” proposed that the Mother be permitted to relocate with the children to City C in Queensland, and the Father would then spend time with the children depending on whether he continued to reside in Town B or move closer to the Mother’s home, and further depended on whether the current COVID restrictions remain in place.

18. “Plan B” proposed that if the Mother would not be permitted to relocate with the children, the children would live with her and spend time with their father each alternate weekend from Friday afternoon to Sunday afternoon, and any other week from after school on Wednesday to before school on Thursday.  In addition, on this scenario the Mother sought orders in relation to the parties’ mortgage over the family home for her to have exclusive occupation of the home and for the Father to pay her urgent spousal maintenance.

19. The evidence relied on by the Mother is listed in her case outline document dated 19 October 2020.  In addition, a number of documents were tendered.  The aforementioned documents are set out below:

    a)Amended Response to Initiating Application filed on 5 October 2020;

    b)Affidavit of Ms Callaham sworn and filed on 19 October 2020;

    c)Affidavit of Ms Callaham sworn and filed on 5 October 2020;

    d)Affidavit of Ms Callaham sworn on 24 September 2020 and filed on 25 September 2020;

    e)Affidavit of Ms Callaham sworn and filed on 17 September 2020;

    f)Notice of Risk filed on 25 September 2020;

    g)Financial Statement of Ms Callaham filed on 5 October 2020;

    h)Case Outline document received on 19 October 2020;

    i)Tender bundle prepared on behalf of the Respondent Mother (marked as exhibit R1);

    j)Minute of Orders sought by the Respondent Mother (marked as exhibit R2);

    k)Employer D - Application for leave (marked as exhibit R3); and

    l)Further bank statements of the Mother (marked as exhibit R4).

20. The issues are reflected above.  In relation to the children, of course, the Court is called upon to make a decision based on an assessment, necessarily an abbreviated one because of the Interim Hearing, about what is in their best interests. 

21. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

22. The objects and principles of Part VII are set out at s.60B:

    60B  Objects of Part and principles underlying it

    (1)  The objects of this Part are to ensure that the best interests of children are met by:

    (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)    parents should agree about the future parenting of their children; and

    (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)    to maintain a connection with that culture; and

    (b)    to have the support, opportunity and encouragement necessary:

    (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (ii)    to develop a positive appreciation of that culture.

23. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

    61DA  Presumption of equal shared parental responsibility when making parenting orders

    (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)    family violence.

    (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

1. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)  If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)  If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

2. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

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

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

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

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

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

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

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

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

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

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

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

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

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

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

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

5. The maintenance issues are governed by section 74 and 77 of the Act, and the various injunctive orders pertaining to the mortgage and property seem to be based on section 114 of the Act.

   Section 74 - Power of court in spousal maintenance proceedings

   (1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

   (2)  If:

   (a)  an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

   (b)  either of the following subparagraphs apply to a party to the marriage:

   (i)  when the application was made, the party was a bankrupt;

   (ii)  after the application was made but before the proceedings are finally determined, the party became a bankrupt; and

   (c)  the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and

   (d)  the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;

   the court must join the bankruptcy trustee as a party to the proceedings.

   (3)If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

   (4)The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.

   (5)If:

   (a)  an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

   (b)  either of the following subparagraphs apply to a party to the marriage (the debtor party ):

   (i)  when the application was made, the party was a debtor subject to a personal insolvency agreement; or

   (ii)  after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and

   (c)  the trustee of the agreement applies to the court to be joined as a party to the proceedings; and

   (d)  the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;

   the court must join the trustee of the agreement as a party to the proceedings.

   (6)If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.

   (7)The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.

   (8)For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:

   (a)  the application is withdrawn or dismissed; or

   (b)  an order (other than an interim order) is made as a result of the application.

Section 77 - Urgent spousal maintenance cases

Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

Section 114 - Injunctions

(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(a)  an injunction for the personal protection of a party to the marriage;

(b)  an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c)  an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

(d)  an injunction for the protection of the marital relationship;

(e)  an injunction in relation to the property of a party to the marriage; or

(f)  an injunction relating to the use or occupancy of the matrimonial home.

(2A)In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of  de facto financial cause in subsection 4(1)) the court may:

(a)  make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

(b)  if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

(i)  that residence; or

(ii)  a specified area in which that residence is situated; and

(c)  make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.

Note 1:      This subsection does not apply to proceedings referred to in paragraph (g) of the definition of  de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.

Note 2:      The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

(4)If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt's creditors.

(5)Subsection (4) does not limit subsection (3).

(6)If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.

(7)Subsection (6) does not limit subsection (3).

1. The issues are related, and the initial focus will be on determining the parenting arrangements for these children.

2. The Father’s case outline refers to a number of cases including the High Court’s decision in MRR v GR [2010] HCA 4 and the Full Court’s decision in Morgan & Miles [2007] FamCA 1230. Again, relevant paragraphs from these cases will be incorporated into these oral Reasons. The difficulty associated with making interim decisions in children’s cases particularly where one of the proposals involves a relocation of where the children have lived with one parent contrary to the wishes of another is well recognised in the cases.

3. The Full Court and particularly Boland J in Morgan & Miles emphasised that the present stability of children may be extremely relevant on an interim basis. Her Honour was not suggesting, this Court believes, that this consideration trumps, in effect, the other considerations both primary and additional referred to in section 60CC. Ultimately, the Court must make a decision that is in the best interests of the children having regard to the evidence and all of the considerations referred to in section 60CC.

4. A number of broad observations or impressions may be formed from the material before the Court.  Firstly, the Mother relied entirely on her own evidence.  It would have been helpful to the Court to have some evidence from her partner, Mr K, who she refers to at paragraphs 210 and 211 of her Affidavit of 24 September 2020.  It is clear from her evidence that even though she asserts that it was not proposed that she and her partner move in together, he would nonetheless be involved in the care of the children at times including when she was working. 

5. It is also clear from the evidence, for example, exhibit A2, the Mother’s ANZ Bank statement, as well as exhibit R4, further bank statements of the Mother, that her partner has provided what appears to be substantial financial assistance to her which the Court infers is indicative of the depth of and commitment in their relationship.  A reasonable inference to be drawn from the Mother’s evidence is that she took the healthcare worker position in Region F because of the proximity to the home of her partner. 

6. By contrast, the Father’s evidence comes from a number of sources apart from himself.  Affidavits were provided in his case by the maternal grandmother, the Mother’s brother, the Father’s partner, as well as the Father’s sister-in-law.  The Mother’s Affidavit of 19 October 2020 responds to the evidence of these other parties.  At paragraph 34 she is critical of the collective evidence of these other witnesses and asserts that they are “complete fabrications”. 

7. The Court observes that even if the evidence given by these other parties in terms of allegations against the Mother (many are quite frankly irrelevant opinions), even if all of this is discounted there is a common theme, and the common theme of the evidence is that the closeness of the Father’s relationship with the children which is entirely consistent with the Father’s own evidence, and not necessarily inconsistent with the Mother’s evidence and her proposals for the children to spend time with the Father.

8. The evidence regrettably creates the impression that the Mother was less than diligent in complying with her duty of disclosure to the Court in relation to all issues before it.  It should be remembered that it was the Mother who raised financial issues in this case not the Father.  The moment she did so she was obliged to fulsomely disclose to the Court all relevant evidence about her finances, and in the context of the parenting side of the case explain how her work affected her ability to personally care for the children. 

9. What transpired as a result of documents including exhibit A2 and R4 is that it emerged that the Mother was receiving a considerable income from employment in setting up an out-of-school home care service during 2020.  Other than the assertion that her Counsel was instructed to make, there was no evidence of the circumstances of her allegedly ceasing this employment. 

10. There was no evidence of how much time was involved in the work and who cared for the children while she was working.  There was no evidence about whether if she were not permitted to relocate she would be able to return to this employment.  Moreover, the same bank statements indicate substantial financial support from her partner, indeed, measured in the tens of thousands of dollars, and at one point described as a loan which is nowhere disclosed in her Financial Statement of 5 October 2020. 

11. Regrettably, this lessens the confidence that the Court can have in the Mother’s evidence generally and not just in relation to financial matters.  The Mother is asking the Court to make orders in relation to her children which on any view represents a major change to their lives.  She must not only place all the metaphorical cards on the table, but she must do so with the cards facing up.  The Court should not be left in a position where even at an Interim Hearing it is not sure whether the Mother’s presentation of the relevant facts has been selective. 

12. The Court must consider meaningful relationships.  There is no doubt that these children enjoy a meaningful relationship with both their parents.  The question for this Court is whether and, if so, to what extent this meaningful relationship is maintained if the Court makes orders in terms of the proposals advanced by each parent. 

13. The Court is satisfied that meaningful relationship is preserved on the Father’s proposal and what will be described as “plan B” of the Mother’s proposal.  “Plan A” of the Mother’s proposal, however, would, based on the preliminary impressions of this Court having regard to the available evidence, strain the meaningful relationship that the children have with their father.  The Mother’s proposal for the Father to spend time with the children if he lives more than 35 kilometres away from the home that she has rented provides for him to spend time with the children each third weekend and half the school holidays. 

14. A variable, and in any event an obstacle, to the Father’s time is whether or not the COVID restrictions are in place.  The Mother makes a much more generous proposal for the Father to spend alternative Wednesday afternoons to the following Monday morning if he is living within 35 kilometres of the Mother’s proposed home.  The Mother’s proposal is significant because it reflects no concerns about the Father’s ability to care for the children for five nights each fortnight notwithstanding some of the issues she raises in her Affidavit. 

15. The reality of any proposal that the Father can himself relocate needs to be assessed.  Whilst there is evidence to suggest that he is looking for work that would take him outside of Town B, there is no evidence to suggest that he has found that work let alone that it is proximate to where the Mother wants to live.  The fact is that the family home has only been on the market for sale – and has for quite some time.  It remains so, and it has not sold. 

16. Given the mortgage commitment this is a relevant factor.  There is no evidence before the Court which would enable it to conclude that there was even a reasonable prospect of the Father being able to relocate somewhere close to where the Mother wants to live.  For all practical purposes this means that the Mother’s proposal for the children to spend time with their Father on her “plan A” is unrealistic in the short or even medium term.  The Court cannot be satisfied that the meaningful relationship that the children have with their father can be sustained on the Mother’s “plan A”. 

17. The Court must make an order that protects the children from harm.  Even Counsel for the Mother quite frankly and properly conceded that risk of harm considerations were not prominent in this case.  Indeed, they are not despite some of the allegations contained in the Mother’s Affidavit and, indeed, the Father’s Affidavit. 

18. The process of litigation always has the potential to bring out allegations designed to help one’s case which viewed in the broader context become actually quite insignificant.  The proposals made by each parent for the other to spend generous time with the other parent is completely inconsistent with an assertion about risk of harm. 

19. The Court must take into account the views of the children.  There are no relevant views on which this Court will place any weight. 

20. The Court must take into account the nature of the children’s relationships with their parents and the other significant persons in their life.  It is clear that these children have a close relationship with both parents and would probably suffer emotional harm if they were separated for extended periods from either the Mother or Father.  The Mother recognises this in acknowledging that if she is not allowed to relocate she will not move at least for the time being and resume a significant role in caring for the children. 

21. It is important from this Court’s perspective to avoid making an order that creates even the prospect of either parent having extended absences from the children.  The Mother’s proposal on “plan A” is problematic in this regard.  The remaining proposals are not.  In addition, the overall impression created from the evidence led by the Father suggests that the children have a more extensive network of adults who are important to them in and around Town B, and they would be denied this network on the Mother’s “plan A”. 

22. The Court must take into account the extent to which the parents have taken the opportunity to be involved in decision-making, spending time and communication with the children.  The Court does not regard this to be a determinative consideration in this case.  It is clear that these parents have demonstrated historically the capacity to co-parent these children even whilst separated. 

23. The likely effect of changes in the children’s circumstances and the impact of this on their relationships is a very important consideration in this case.  It throws the light on the Mother’s “plan A” and its likely effect on the children as well as the consequential separation from their father and other significant adults in their life.  The important thing to appreciate here is that the impact of change must be considered by reference to the very limited lay and contested evidence before the Court.  There is no expert evidence to assist the Court to determine how X and Y will cope with the psychical and emotional changes that are proposed in the Mother’s “plan A”. 

24. Of course, there is the Mother’s evidence, and there is the Father’s evidence which, understandably, are not consistent in this regard.  For example, the Mother’s emphasis that she has been the person most responsible for the care of the children.  Whilst the Father contests this, in essence, his case is that the quality and not just the quantity of his relationship with the children means that a separation from him is likely to have an adverse effect on them. 

25. The partisan nature on the parents’ evidence makes it unreliable in seeking to assess the impact on the children of the changes in their circumstances and of separation from their father which is inherent in the Mother’s proposal as discussed above.  The absence of expert evidence means that for all practical purposes the Court simply does not know what is the likely effect of changes in the children’s circumstances.  As Boland J said in Morgan & Miles, except in case of emergency, which is clearly not the case here, the children’s present stability may be extremely relevant. 

26. The Mother’s proposed “plan A” brings about a drastic change in where they live and where they will go to school and preschool in the community that they have grown up in, in the circle of adults who have had direct and indirect care to them let alone to the frequent if not constant presence of the Father.  The Mother’s evidence indicates that in all likelihood new people will be introduced to their lives.  For example, the Mother’s partner and other substitute carers when she must work. 

27. There is no reliable evidence about the children’s resilience to cope with these changes.  By contrast, the issue does not arise in the context of the Father’s proposal or the Mother’s “plan B”.  This is an important consideration which in the view of this Court strongly contraindicates making an order consistent with the Mother’s “plan A”.  It must be emphasised, however, that this is an Interim Hearing and that at a final hearing the Court’s conclusion could be completely different, and especially so once the gaps in the evidence have been filled. 

28. Again, the Court wishes to emphasise that it understands that change in the lives of these children is inevitable.  It is just a question of time when they will have to move out of their home because it is sold.  It is likely that both parents will move from Town B in due course.  But none of that justifies making an interim order that brings about such significant change in their lives in the context of a vacuum of evidence about the impact of such changes on them. 

29. The Court must take into account issues of practical difficulty and expense.  There can be no question that the Mother’s proposal on “plan A” would render it much more difficult let alone expensive for the Father to spend time with these children unless he moves to an area much closer to the Mother’s residence.  For reasons already articulated, there is insufficient evidence for the Court to conclude that the Father can move to an area close to the Mother’s proposed residence at least for the time being.  No such concerns arise on the other proposals before the Court. 

30. The Court must consider the capacity of the parents to provide for the needs of the children.  The Court accepts a submission made on behalf of Counsel for the Mother that in many respects these children are very luckily to have the parents they have.  They have had a rich upbringing surrounded by adults who love them.  The end of the parental relationship as well as their diverging future plans has been the genesis of the present conflict. 

31. There is implicit criticism in each parent’s case about the other, but when these criticisms are compared to the proposals they actually make they fade away or are, at least, postponed in terms of critical consideration until a Final Hearing.  There are attitudes of the parents in respect or which some criticism can be made but none of which in this Court’s view affect their capacity. 

32. The Court must take into account issues of maturity, sex, lifestyle and background.  The parents appear to have a strong Christian faith which they manifest and exercise in different ways.  It seems to have been an important part of their lifestyle, but in reality there is nothing in the evidence to suggest that this will change in the future or that it has an adverse impact on the children.  The Mother’s express or implied criticism of the way in which other members of both her family and the Father’s family practice their faith is not relevant to any interim determination before the Court. 

33. The Court must consider parental attitudes and to the responsibilities of parenthood.  Each party makes criticism of the other in their evidence which could be characterised as expressions of concern about the other parent’s attitudes. 

34. The focus for present purposes is on what the Court considers to be the most relevant issue.  The totality of the evidence before the Court leads it to form the impression that the Mother decided she was going to relocate with the children and, thus, bring about a significant change in their lives without the Father’s consent and not withstanding his objection. 

35. The evidence about the communication between the parents, their lawyers, the Mother’s signing of the lease and its predecessor are consistent with the Father’s concerns about the Mother’s unilateral actions.  The impression formed is that she was prioritising her needs over that of the children and over the interests of their father.  At a Final Hearing this issue may assume a much greater significance than it can at an Interim Hearing. 

36. Whatever the Mother’s attitude may have been during the course of these proceedings she appropriately moderated her proposals to include one that involves giving up that which she clearly wanted;  a move closer to her partner as well as a new position as a healthcare worker in Region F.  This would not have been an easy decision for the Mother to make.  Whatever concerns might have existed about her attitudes towards her responsibilities as a parent, the fact that she changed her proposal reflects well on her. 

37. The Court must, however, express its surprise that on 21 October 2020 she pursued at least the option of relocation when on 6 October she had, the Court considered quite wisely, not pursued this.  Back on 6 October 2020 her position was presented as the result of a reflection on the impact of the children of her proposal.  One wonders what happened to that reflection by 21 October 2020. 

38. The only evidence that provides a possible hypothesis is exhibit R5, her application for unpaid leave, which suggests that she was able, in effect, to buy some time before having to make an election about taking the position in Region F.  Any suggested lack of child focus in this regard may well be the subject of cross-examination at a Final Hearing. 

39. The Father’s attitude may also be subjected to critical scrutiny on the question of his attitudes at a Final Hearing if the evidence establishes that he did, in fact, agree to relocation but then changed his mind.  And if it becomes clear that he always intended to relocate himself anyway then past events may be interpreted in a different light and may reflect poorly on his own case. 

40. The Court must consider family violence and family violence orders.  This did not present as an issue during the Interim Hearing, quite properly.  The allegations made by both parents raised no significant concerns and are, in any event, inconsistent with the proposals that they themselves make for the other parent to spend time with the children. 

41. Having regard to the above, what orders, therefore, are in the best interests of the children?  When the totality of the evidence is considered by reference to the considerations briefly explored above, the Court concludes that the Mother’s proposal for relocation, namely, her proposed “plan A” is not in the best interests of the children at least on the basis of the evidence at the Interim Hearing. 

42. The question remains to be answered what time should the children spend with each parent and in what circumstances.  On both the Mother’s proposal and the Father’s proposal the children would live in the family home in Town B.  The Mother proposes that an order be made for the children to live with her and to spend time with their father in accordance with her proposal outlined above.  The Father proposes that the children live with him and spend time with the Mother in the family home subject to the Mother’s availability pursuant to her roster. 

43. What is clear is that the Father has suitable alternative accommodation at the home of his mother near the family home.  The evidence suggests that the children are familiar with the paternal grandmother’s home and with the paternal grandmother.  There is no evidence to suggest that the Mother has alternative accommodation to the family home.  As mentioned earlier in these Reasons, it seems as if the Father’s proposal was based on the Mother taking up the position either at Region F or elsewhere and returning to Town B when she is not rostered on to spend time with the children. 

1. That could, in fact, be the case, but there is no evidence before the Court in this regard.  The Court accepts consistent with her Counsel’s submissions that the Mother will not take the position at Region F given the Court’s decision that relocation will not be permitted on an interim basis.  That, of course, does not preclude the Mother at least attempting to regain her former position in Town B or seeking a comparable position somewhere else that will enable her to, in effect, move in and out of the family home consistent with the Father’s proposal. 

2. But if she cannot, however, then given the availability of alternative accommodation for the Father and the absence of alternative accommodation for the Mother, it does seem to be appropriate for her to continue to live in the family home whether or not she takes up a position elsewhere in New South Wales that makes it impracticable for her to remain living in the family home.  This amounts, in effect, to an order for exclusive occupancy in the Mother’s favour. 

3. Whether this is a conclusion that is reached via section 68B or section 114, both statutory provisions empower such an order. The Father’s proposed order, however, will need to be varied to clarify that if the Mother’s employment does not enable her to live in the family home then her exclusive occupation will be limited to the periods when she does, in effect, return to the home. At other times it is the Father who will have exclusive occupation of the home.

4. This provides continued stability for the children with the benefit of active involvement of both parents in their lives.  If the Mother does not obtain employment, however, then the children would live with her in the family home and spend substantial and significant time with the Father.  It is hard to understand why, for example, the Mother proposed order 6(a) that the Father have from Wednesday afternoon to Monday morning each alternate week if the children relocated closer to her proposed residence in City C, but at order 23 proposes that the children only have each alternative weekend from Friday to Sunday afternoon as well as alternate Wednesday nights if she returned to the family home. 

5. If 5 nights out of 14 in a five-night block was in the bests interests of the children in one instance, why would it not be in the best interests of the children if they remain in their own home? Pending further order the Court’s preference is that the children have substantial and significant time with their father consistent with the Mother’s proposed order 6(a). This is considered to be in the children’s best interests because the Father is in full-time employment whereas on this scenario the Mother would not be. The Father does have an adequate support system even if his work means from time to time he is unavailable to personally care for the children. Such a proposal otherwise ticks all the metaphorical boxes under section 60CC.

6. The Court has already ordered exclusive occupancy in favour of the Mother subject to the matters referred to above.  The focus now turns on the claim for maintenance.  The context of the claim needs to be understood.  It is common ground that the Father is paying the mortgage and meeting all outgoings in relation to the home.  There is no suggestion that this will change.  The Mother seeks a further amount of $836 on top of this.

7. The Court declines to make this order or, indeed, any order for spousal maintenance at least for the time being.  The Court is not satisfied that the Mother has properly disclosed her financial circumstances.  The Court refers to its earlier comments about her financial disclosure and the financial resource she seems to have in terms of her partner. 

8. Whilst it is true that the Mother has a lease lability in City C, the overall impression created is that this was created foolishly and with indifference to the Father’s opposition to her relocation of the children.  It is possible that she will have to get out of the lease, or assign it, or enter into some other arrangement that mitigates her loss, are all possibilities mentioned quite correctly by her own Counsel. 

9. In any event, it is not possible to discern from the evidence how the Father would have capacity to meet any interim or urgent order for spousal maintenance in circumstances where he is not only servicing the loan and paying the outgoings on the house but has substantial and significant time with the children. The Father’s income is relatively modest.  None of his expenses present as being excessive.  There is no basis for making an order for spousal maintenance in favour of the Mother for the time being.  This does not exclude the possibility of a future application that is brought with appropriate evidence including disclosure. 

10. What orders, therefore, should be made?  The Mother proposed at order 27 that the parties do all things to take advantage of the hardship facilities provided by their bank in respect of their mortgage.  What is proposed is imminently sensible even if it postpones what is inevitable, that is, the payment of the mortgage. 

11. The Court has taken into account the Father’s reduced mortgage liability if hardship is granted in reaching its conclusion about spousal maintenance.  Orders will be made consistent with the order 31 proposed by the Mother to the effect that the Father continue to pay the mortgage, council and water rates.  Interim order 1 made by consent on 6 October 2020 relating to physical discipline of the children whilst in the Father’s care would be continued on a without-admissions basis.  This did not seem to be in contention. 

12. Having described the orders, we will settle these orders as soon as we can and hopefully within 24 hours.   I will bring this matter before me early next year to review the progress in the matter. 

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date: 18 November 2020