COLGAN & COLGAN

[2018] FamCA 586

FAMILY COURT OF AUSTRALIA

COLGAN & COLGAN [2018] FamCA 586

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Where the presumption of equal shared parental responsibility does not apply as there has been family violence – Where the parties have a very poor relationship and a long history of conflictual behaviour – Where the court expert does not recommend equal shared parental responsibility – Where the children would benefit from input from their father in decision making – Where an order is made for the mother to have sole parental responsibility but that she consult with the father.

FAMILY LAW – CHILDREN – Where the father seeks the children spend four nights per fortnight in his care and the mother seeks the children spend three nights per fortnight with the father – Where the Court is satisfied that there has been family violence perpetrated by the father in the past – Where the children have spent time regularly with their father and the reports are positive – Where the court expert recommends the orders proposed by the father – Orders made that the children spend four nights per fortnight in the father’s care.

FAMILY LAW – PROPERTY – Where there was a relationship of seven years – Where the principal asset is a controlled monies account held by the husband’s solicitors as per previous Court orders – Where the wife made a greater initial contribution and has had the primary care of the children since separation – Where during the relationship the husband was the primary earner and the wife was primary carer of the children – Where contributions are assessed at 53 per cent to the wife and 47 per cent to the husband – Where the wife has the primary care of the children and the husband has a slightly greater earning capacity – Where an adjustment of 10 per cent is made in favour of the wife.

Family Law Act 1975 (Cth) s 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA, 75, 79

Bevan & Bevan (2013) FLC 93-545
Chorn & Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Colgan

RESPONDENT: Mr Colgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5091 of 2014

DATE DELIVERED: 2 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 28-31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: KD Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Parenting

1. The following parenting orders are made in relation to the children K born … 2010 and L born … 2013 (“the children”).

CONSENT ORDERS

1. By consent, the interim parenting orders in relation to the children made on 31 August 2017 shall continue as final orders as follows:

   1.That the children live with the mother.

   2.That the children spend time with the father as follows:

   2.1during school terms:

   2.1.1. …

   2.1.2. …

   2.1.3. commencing in Term 1, 2018, each alternate weekend from the conclusion of school/preschool Friday to the commencement of school/preschool Monday.

   2.2during school holiday periods:

   2.2.1. …

   2.2.2. during the school holiday periods occurring at the conclusion at Terms 1, 2 and 3 in 2018, for one week of each period and in the absence of an agreement between the parties, in the first week from 10.00am Saturday until 4.00pm the following Saturday;

   2.2.3. during the school holiday periods occurring at the conclusion of Term 4, 2018 for each alternate week and in the absence of an agreement, in the first week from 10.00am Saturday to 4.00pm the following Saturday and each alternate week or partial week thereafter.

   2.2.4. for one half of each school holiday period in 2019 and each year thereafter and in the absence of an agreement for the first half in 2019 and each alternate year thereafter and for the second half in 2020 and each alternate year thereafter except as provided for in Order 2.2.5.

   2.2.5. Order 2.2.4 is varied commencing with the holiday period after Term 2 in 2019 and each alternate year thereafter so that the children’s time with the father shall be suspended during the Term 2 holiday period each alternate year, and in those years the children shall spend time with the father for the whole of the school holiday period after Term 3.

   2.3Easter Sunday from 1.00pm to 4.00pm

   2.4Father’s Day from 10.00am to 4.00pm;

   2.5on the father’s birthday each year from after school until 7.00pm if a school day and from 10.00am until 4.00pm if not a school day; and

   2.6other times as agreed between the parties.

   3.Notwithstanding Order 2, that the father’s time with the children shall be suspended on the following occasions:

   3.1Easter Sunday from 10.00am to 1.00pm;

   3.2Mother’s Day from 10.00am to 4.00pm;

   3.3on the mother’s birthday each year from after school until 7.00pm if a school day and from 10.00am until 4.00pm if not a school day;

   4.For the purposes of defining a school holiday period in Order 2 and unless otherwise agreed:

   4.1a school holiday period commences on the day immediately following the last day of school in the relevant term of the school to which the children attend;

   4.2a school holiday period does not include pupil free days; and

   4.3time pursuant to Order 2.1 shall resume on the first weekend of the relevant school term.

   5.That when the children spend time with the mother or father in accordance with these Orders, and on a without admissions basis, the parties be restrained from:

   5.1swearing at any of the children;

   5.2physically disciplining any of the children by hitting them or striking them and the parties shall use their best endeavours to ensure that any third party does not physically discipline the children;

   5.3making critical or derogatory remarks about the other parent and/or the other parent’s family in the presence or hearing of the children, or directly via e-mail, telephone or text to the other party.

   6.That the party without the day to day care of the children at any given time be restrained from approaching the other parent and the children when the children are participating in sporting, extra-curricular events or school functions without the express prior written consent of the other party.

   7.That both parties do all acts and things, and sign all necessary documents to authorise any school/s attended by the children to provide to each parent all particulars of the children’s schooling, including but not limited to the provision of school reports, notices of school photographs, circulars sent to parents, notices of school excursions and any other activities to which the children are participants.

   8.That both parties do all acts and things, and sign all necessary authorities to any medical practitioner, specialist, orthodontist, psychologist and/or any other health professional to enable both parents to obtain particulars in relation to the children’s health.

   9.That in the event either party wishes to travel overseas with the children, the travelling parent shall provide to the other parent, at least two (2) months prior to the travel, except in circumstances of urgency in which case as much notice as practicable, the following:

   9.1a copy of the itinerary;

   9.2a copy of the return tickets;

   9.3telephone contact details for the children whilst they are overseas.

   10.That both parties do all such acts and things, and sign all necessary documents from time to time to ensure that both children have current Passports.

   11.That the mother shall retain the children’s passports at all times, save to allow the father to travel with the children in accordance with the provisions of  Order 10 above and shall provide the passports to the father not later than one month before the children’s proposed travel, and the father shall return the passports to the mother within 14 days after his return.

   12.That each party must keep the other notified of their current residential address and provide the other with written notice of any change in their residential address, email address and telephone numbers within 48 hours of any change.

   13.If there is a severe medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the children must:

   13.1immediately contact the other party; and

   13.2as soon as practicable, provide the other party with all documentation and information in their possession regarding the incident.

   14.That the parties make all arrangements required to attend upon a Family Therapist as recommended by Dr E or otherwise agreed between the parties. That leave be granted for the identified Family Therapist to be provided with a copy of Dr E’s Report.

   15.That the children have telephone communication with the father each Wednesday with the communication to be initiated by the mother between the hours of 7:00pm and 7:30pm, and facilitated by the mother enabling the children to use her telephone.

ORDERS NOT BY CONSENT

Parental Responsibility

1. The mother shall have sole parental responsibility for the children on the basis that the mother shall consult the father about the decision to be made in the exercise of parental responsibility as follows:

   3.1the father provide the mother with an up to date email address; and

   3.2the mother contact the father by email/in writing with as much notice and relevant information as is available in respect of the decision to be made; and

   3.2upon receipt of that information, the father shall provide a prompt response via email to facilitate the mother’s consideration of his input; and

   3.3both parents shall ensure that all consultation between them in relation to parental responsibility for the children is conducted in good faith, is child focused and is not derogatory of the other parent.

Time Spent

1. The children shall also spend time with the father as follows:

   4.1commencing in Term 4 2018, each alternate week from the conclusion of school/preschool or 3.00 pm Thursday to the commencement of school/preschool or 9.00 am the following Monday;

   4.2from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in 2018 and each alternate year thereafter;

   4.3from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day in 2019 and each alternate year thereafter.

2. The father’s time with the children shall be suspended on the following occasions:

   5.1from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day in 2018 and each alternate year thereafter;

   5.2from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in 2019 and each alternate year thereafter.

Changeover

1. That for the purposes of changeover:

   6.1If changeover is to occur at school/preschool, the father or his nominee is to collect the children from school at the commencement of time or deliver the children to school at the conclusion of time; and

   6.2If changeover is to occur on a non-school/preschool day, then the mother or her nominee shall deliver the children to the home of the father at the commencement of time and the father or his nominee shall return the children to the home of the mother.

Property

1. Within 14 days the husband and the wife do all things and sign all documents necessary to direct the husband’s solicitors to release and pay to the wife the sum of three hundred and nineteen thousand, seven hundred and sixty seven dollars ($319,767) from the controlled monies account held by them pursuant to the orders made on 10 September 2014.

2. The wife be declared the sole owner of all funds in the controlled monies account held by her solicitors pursuant to the orders made on 10 September 2014.

3. Within 14 days the husband do all things and sign all documents necessary to transfer to the wife the registration and his interest in the motor vehicle registration number ….

4. The husband and the wife each be declared the sole owner of all other property and superannuation in their possession and/or control respectively.

5. The husband and the wife shall each be solely liable for and indemnify the other in respect of any debts in their sole name or for which they are liable.

6. All exhibits be released.

7. The husband and the wife each have leave to relist these property proceedings by arrangement with the Associate to Johnston J in relation to the implementation of these orders.

8. That the above property orders not commence operation until 21 August 2018.

9. That both parties have leave to relist these property proceedings at any time not later than 20 August 2018 by arrangement with the Associate to Johnston J for submissions only in relation to the form of the orders.

10. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of this Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5091 of 2014

Ms Colgan
Applicant

And

Mr Colgan
Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final parenting and property proceedings.  The parties are Ms Colgan (“the wife”) and Mr Colgan (“the husband”).  They have been unable to resolve their dispute entirely and have asked the Court to determine parenting arrangements and property settlement for them. The parties have two children, K born in 2010 and L born in 2013.

Applications

1. To their credit the parties were able to resolve many of the parenting issues during the course of the trial.

2. In these circumstances, I was able to make interim consent orders in terms of the parenting matters which were agreed by the parents.  These interim orders were in the form of the minute of consent order, annexed to these reasons at Annexure “A”.  These orders are now made by consent on a final basis with minor amendments made to ensure that dates and times that have already passed are omitted. Order 17 was not included in the final orders as an order has already been made for the payment of the fees of the Independent Children's Lawyer. The matters which remain in contention are as follows:

   ·Parental responsibility.  The wife and the Independent Children's Lawyer seek that the wife have sole parental responsibility for the children, K and L.  The husband seeks an order for equal shared parental responsibility.

   ·The agreed minute of consent orders provides for the children to spend increasing time with their father to the point where in Term 1 2018 this became each alternate weekend from the conclusion of school/preschool Friday to the commencement of school/preschool Monday.  The husband and the Independent Children's Lawyer seek an order that the children spend time with the husband commencing in Term 4 2018 each alternate week from the conclusion of school/preschool Thursday to the commencement of school/preschool the following Monday.  The wife opposes any such increase.

   ·The parties agree about certain arrangements in relation to changeover.  But the wife seeks two additional orders as follows:

   (i)That for the purposes of changeover when it does not take place at school or preschool, the husband shall not approach within five metres of the wife or seek to converse with her.

   (ii)That the husband be restrained from entering within the boundaries of the property upon which the wife from time to time resides.

   Each of such orders is opposed by the husband.

   ·The wife also seeks the following order:

   That the [husband] be restrained from approaching the [wife] and the children whilst they are in the presence of the [wife] in any public place and/or otherwise engaging in any conduct that intimidates or harasses the [wife].

   The husband opposes such an order.

   ·The wife and the Independent Children's Lawyer seek the following order:

   That in the event either of the children are required to attend any sporting or extra-curricular activities on a non-school day, the parent with care of the children on that particular day shall take the child/children to such activity and the other parent shall otherwise be restrained from attending that event.

   The husband opposes such an order.

   ·The parties disagreed about Christmas arrangements and I shall refer to this below.

Background

1. The husband was born in Brisbane in 1971 and is currently 47 years of age. The wife was born in 1972 in Country J in Europe and is currently 45 years of age. The wife arrived in Australia in approximately 1978 and became an Australian citizen in February 2008. The wife was previously married and was divorced in 2006.

2. In 1993 the wife completed a degree.

3. In 1994, the wife commenced employment at Company N and subsequently became an assistant manager in December 1995.

4. From approximately October 1997 to December 1999, the wife worked at Company O as a senior manager.

5. From January 2000 to August 2006, the wife returned to work at Company N (now called Company P) and held various positions.

6. In December 2006 the husband purchased a property in his sole name located at Q Street, Suburb G (“the Suburb G property”). This property was purchased by the husband several months before the parties started living together.

7. In August 2007 the parties commenced living together when the wife moved into the Suburb G property.

8. At this time, the wife was employed at Company R as a senior manager. The husband was employed at X Bank.

9. In 2008 the parties were married.

10. In 2009 the husband commenced working at Company T. This position required the husband to spend three or four days per week in Brisbane.

11. In May 2009 the wife was retrenched from her position at Company R and received a redundancy payment.

12. In 2010 K was born.  He is currently eight years of age.

13. In May 2010, when K was three months old, the parties applied for him to attend U School.

14. From mid-2011, the parties undertook extensive renovations on the Suburb G property.

15. In June 2011 the wife obtained a three month contract working one day a week as a consultant with Company S.

16. In August 2011 the wife had an ectopic pregnancy, miscarried and lost a fallopian tube.

17. On 24 November 2011 the husband purchased a German motor vehicle.

18. In August 2012 the parties undertook three cycles of IVF.

19. In February 2013 the husband ceased his employment with Company T, having been made redundant.

20. The husband was unemployed between February and June 2013.

1. In June 2013 the husband secured employment as a consultant at D Pty Ltd.  This position was initially based in Brisbane and the husband commuted from Sydney.

2. In 2013 L was born, he is currently four years of age.

3. In January 2014 the Suburb G property was sold. The wife says that the net proceeds of sale were $618,807. The husband asserts that the proceeds of sale were $749,944. The proceeds were paid into the husband’s account. The parties moved into a rental property at Suburb V (“the Suburb V property”).

4. In February 2014 K commenced school at U School.

5. In mid-2014 the wife booked a two week holiday to Europe with her friends for 26 August 2014 but this trip was later cancelled.

6. On 9 August 2014 the parties separated on a final basis.

7. On 9 August 2014 there was an incident between the parties.  Following this date the husband commenced residing with his parents.  I shall refer to this matter again below.

8. On 10 August 2014 an Apprehended Domestic Violence Order (“ADVO”) issued. This was to remain in place until 14 May 2017.

9. On 10 August 2014 the wife completed the City2Surf running race.

10. On 14 August 2014 the wife filed an Initiating Application for final and interim orders.

11. On 7 September 2014 B Contact Centre oversaw a meeting between the husband and the children. The husband asserts that the wife denied him access to the children between the date of separation and this date.

12. On 10 September 2014 interim consent orders were made by Justice Rees requiring that the wife have exclusive occupation of the Suburb V property, that the husband meet the costs of the German vehicle in the wife’s possession, that the husband pay spouse maintenance of $763 per week as well as the wife’s rent of $1,905 per week up until 17 January 2015 and that the parties do all things necessary to establish a controlled monies account with their respective solicitors. The wife was to deposit $100,000 into the controlled monies account and the husband was to deposit $605,000 into the controlled monies account. The parties were restrained from any dealings in respect of the accounts save by prior written agreement. 

13. On 12 September 2014 interim parenting orders were made by Justice Rees including that the children live with the wife and spend time with the husband, in the case of K each weekend from Friday to Saturday overnight and for L each Saturday, as well as telephone communication.  Orders were also made for the appointment of a single expert to provide a report.

14. On 5 December 2014 the husband communicated to the wife his intention to remove K from U School.

15. In January 2015 K was enrolled and commenced at W School.

16. In February 2015 L commenced attending day care one day a week.

17. In 2015 the husband was convicted of assault occasioning actual bodily harm.  An Apprehended Violence Order issued with the wife as a protected person.

18. On 31 July 2015 the husband’s employment with D Pty Ltd was terminated. The husband was unemployed from this date until 28 October 2016.

19. In August 2015 the husband flew to Asia funded by frequent flyer points. In mid-2016 the husband also went on an overseas trip paid for by his girlfriend, Ms Y.

20. In September 2015 the wife obtained a contract position with M Ltd. She retained this role until 16 September 2016.

21. In September 2015 L began attending day care three days per week.

22. In 2015 the District Court of New South Wales dismissed the conviction against the husband following an appeal by the husband against the earlier decision by the Local Court.

23. On 7 October 2015 the husband filed an Application in a Case seeking the release of $50,000 from monies held in the controlled monies account.

24. In October 2015 the husband cancelled the internet, Foxtel and other utilities at the wife’s home.

25. From November 2015 the wife began to receive nominal child support from the husband.

26. In November 2015 the wife moved out of the Suburb V property to cheaper rental accommodation.

27. On 17 November 2015 orders were made by Justice Stevenson allowing the husband to withdraw $50,000 from the controlled monies account held in the name of his solicitor with such payment to be characterised as a partial property settlement.

28. On 26 November 2015 the wife made an application to the child support agency seeking a review of child support.

29. On 11 January 2016 orders were made by Justice Loughnan by consent relating to compliance with disclosure, provision of documents to the single expert, Dr E and providing for the wife to elect a nominee for changeover.

30. On 17 March 2016 Dr E’s report was completed.

31. On 23 May 2016 orders were made by Justice Watts by consent allowing the parties to communicate by email for the purposes of arranging contact and in relation to any major health issues pertaining to the children. It was ordered that the wife was to email the husband with details of the person she wished to use as nominee at changeover.

32. In or around June 2016 the wife became aware that information was published regarding the legal matter on an online database with the full names of each of the parties.

33. On 16 September 2016 the wife ceased her employment with M Ltd.

34. In October 2016 L began attending day care three and a half days per week.

35. On 12 October 2016 the husband filed an Application in a Case seeking leave to withdraw a further sum of $50,000 from the controlled monies account.

36. On 21 October 2016 orders were made by me granting leave for the husband to withdraw $25,000 from the controlled monies account with such payment to be characterised as partial property settlement.  A notation was made that both parties use their best endeavours to cause to be removed all online references to the parties’ legal proceedings.

37. On 24 October 2016 the wife commenced a temporary part time contract position at M Ltd.

38. On 28 October 2016 the husband began working in a short term contracting position with Z Ltd.

39. In November 2016 a divorce order was made.

Credit

The Wife

1. The wife had considerable difficulty with the process of cross-examination.  She was clearly nervous.  She was argumentative.  She appeared to have difficulty comprehending the questions.  This, together with a somewhat circumlocutory style resulted in real difficulty obtaining a responsive answer to the question.

2. On three occasions I informed her that it was important that she listen carefully to the question and endeavour to give us a responsive answer.  Notwithstanding these indications, she still had real difficulty with this.

3. The wife endeavoured to use every opportunity to provide information which must have been perceived by her as supporting the case which she was trying to put.

4. In all these circumstances, I have considerable difficulty accepting her evidence where it is not supported by that of other witnesses or documents.

Ms AA

1. Ms AA and the wife have been friends for approximately nine years.

2. Ms AA had a rather vague memory of events on 27 April 2011 about the meeting which she had with the wife at Suburb G that day.  But her recollection of subsequent events was good.

3. Noting the above limitation, I regard her evidence as likely to be reliable and overall consider her to be a witness of the truth.

Ms H

1. Ms H was not required for cross-examination.  Accordingly, her evidence is unchallenged.

Ms BB

1. Ms BB was not required for cross-examination.  Accordingly, her evidence is unchallenged.

The Husband

1. The husband was not calm about the process of cross-examination.  He exhibited a somewhat combative style.  Frequently he endeavoured to enter into debate with counsel.  At one point in response to a question he said to counsel words to the effect “again, more sophistry from you”.

2. He gave the impression that he was frustrated, perhaps even angry, that the wife’s recordings, which reflected poorly on him, had been admitted into the evidence.  He minimised the extent of the grossly offensive, denigrating and abusive language he directed at the wife and took every opportunity to assert that such behaviour occurred very infrequently and was not typical of the parties’ communication during most of the three year period over which the recordings were made.  In defence of himself, he said that the wife “gave as good as she got”, as though somehow this explained (or excused) his dreadful behaviour.

3. The husband’s demeanour in the witness stand was generally somewhat aggressive and intimidatory. 

4. In all these circumstances, and bearing in mind his endeavours to minimise the seriousness of his verbal abuse of the wife, I have real reservations about the reliability of his evidence.

5. The difficulty is that neither the husband nor the wife impressed me as being a witness whose evidence could be relied on with the consequence that where they are at issue, resort will have to be had to evidence of other witnesses or documentary evidence.

Mr Colgan Snr

1. Mr Colgan Snr is the husband’s father.  He was forthcoming and responsive in his answers to questions.

2. I do not hesitate to accept Mr Colgan Snr as a witness of the truth.

Ms Colgan Snr

1. Ms Colgan Snr was not required for cross-examination.  Accordingly her evidence is unchallenged.

Ms CC Colgan

1. Ms CC Colgan was not required for cross-examination.  Accordingly her evidence is unchallenged.

Ms Y

1. Ms Y was not required for cross-examination.  Accordingly her evidence is unchallenged.

Dr E

1. Dr E is the single expert consultant psychiatrist who prepared a report pursuant to the orders of 12 September 2014.  Where I refer to Dr E’s observations and opinions I accept these unless stated otherwise.

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. The objects in this context are to ensure that the best interests of the children are met by:

   ·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

   ·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

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

   ·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

   ·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

   ·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·Parents should agree about the future parenting of their children; and

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

5. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA of the Act). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

6. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

7. Subsection 61DA(1) of the Act provides that 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.

8. Subsection 61DA(2) provides in effect that 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 abuse of the child or another child member of the parent’s family, or family violence. 

9. Subsection 61DA(4) provides to the effect that 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. 

10. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1). If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

11. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe a parent has engaged in family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.

3. In this case I am satisfied that the husband has engaged in family violence and shall refer to this below.  Accordingly, the presumption of equal shared parental responsibility does not apply.

4. The wife seeks an order that she have the sole parental responsibility for the children.

5. She says that she and the husband have a very poor relationship and that they have been unable to make decisions about the children without great upset.  For example, she says that she would like to have the children christened and has raised this with the husband.  She says that he has opposed having the children christened and his decision about this has simply prevailed.

6. In relation to decisions concerning the children’s health, the wife agreed that if one of the children was injured she would not have difficulty informing the husband about this.  But she offers as an example of difficulty concerning health matters an incident where K had been prescribed antibiotics and she was administering the antibiotics.  She said that he spent time with the husband and on K’s return to her care she was uncertain whether the husband had administered the antibiotics.  So she sent a text message to the husband, she says three times, to ask whether K had been given his antibiotics.  She said that the text messages were sent by her over a period of two hours.  When she didn’t hear from him she sent a text message to his sister, Ms CC who responded that she would try and get in touch with the husband. Ms CC did contact the husband and informed the wife that the husband had said that K required another tablet because he had only had three and the dosage was four.  The husband conceded that this was not the best way to manage this issue.

7. The wife said that she has been unable to communicate with the husband by telephone because he has arranged to block her access to his telephone.  So her method of communication with him is by emails and text messages.

8. The wife also raised a particular complaint about what happened in respect of K’s education at U School.  K had been attending U School and the wife said the husband simply disenrolled him with the consequence that apparently because insufficient notice had been given to the School, the parents sustained a $5,000 penalty.

9. In further evidence of the alleged inability of the parties to communicate, the wife points to a considerable number of emails between the parties over the last three years.

10. Dr E said that the parents would struggle to communicate with each other and resolve difficulties.

11. The husband agreed that the parents have a poor level of communication.  He said that they had a pattern of fighting and never resolved anything.  He said that he and the wife are very competitive and that when there was a point of conflict he would usually swear and walk out. 

12. It was submitted on behalf of the husband that it would be a most serious thing to remove from the husband his power to make important decisions about the children.  It was submitted that the Court could draw some confidence that the parents could continue to share this responsibility from the fact that during the course of the hearing they had been able to resolve the issues of the children’s baptisms and schooling.

13. In my view, each of the parties demonstrated in the witness stand that they had a very determined method of communicating. Each holds their views very strongly. In addition, the husband has communicated with the wife in a grossly insulting and disrespectful manner. He has made it very clear that he has no respect for her and no regard for her views.

14. I have had an opportunity to hear parts of conversations between the parents which were recorded by the wife without the husband being aware of this.  It is clear to me that given the husband’s high-handed and offensive style of communication with the wife and her dogged persistence, it would be highly unlikely that in relation to issues about which they disagreed they would have the skills to be able to negotiate an outcome. This would be unhelpful for the children.

15. In these circumstances, this Court could have no confidence whatsoever that these parties could exercise shared parental responsibility in a manner which would enable negotiation and compromise and arrive at appropriate decisions about major matters concerning the children’s interests. In my view, there is no alternative than to order one or other of them to have the sole parental responsibility for the children.  This would accord with Dr E’s recommendation.

16. I shall consider this issue of sole parental responsibility further below.

17. In the event that I proposed to make an order that the parents have equal shared parental responsibility for the children, s 65DAA of the Act would require consideration of whether the children spending equal time with each of the parents would be in their best interests. But I do not propose to make such an order. Accordingly, this requirement does not apply.

Section 60CC Considerations

1. How the Court is to go about determining what is in the children’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.

1. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. These children are young.  Dr E did have a discussion with K about his views and he made some observations about K’s drawing of his family.  Dr E considered K had a desire to spend time with each of his parents.  But he said that K would not be drawn on whether he wanted more or less time with either parent, or different arrangements.

2. Dr E said that K indicated that he would prefer the judge to determine how much time he would spend with each parent.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. The wife has been the primary carer of the children.  It is unsurprising therefore that Dr E said that the children have a “foundational” attachment relationship with the wife which is a mostly secure attachment relationship in that the children experience her as mostly able to meet their needs, and as non-dangerous.

2. Dr E expressed some concern that there were some vulnerabilities in the relationship between the wife and K, and some lack of parental effectiveness by the wife in guiding K.

3. Dr E said that the husband has a positive relationship with the children.  He said that at interview the boys appeared glad to see the husband.  Dr E said that L appeared at ease in the husband’s arms and sat contentedly on the husband’s lap.  He said that K was excited.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

1. From separation until September 2014 the husband was unable to spend time with the children because of the existence of the Apprehended Violence Order. But from September 2014 the husband spent time with the children.  From that time he saw them every week in accordance with the interim orders made on 12 September 2014.

Subsection 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. As indicated above, in November 2015 the husband was reassessed by the Child Support Agency and commenced paying $51 per week in child support for both children.  The payment was revised as the husband became unemployed on 31 July 2015. The husband has recently been assessed to provide $168.54 per week.

2. There is no suggestion that the husband has not provided child support to the extent assessed by the Child Support Agency.

Subsection 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. Given the agreed arrangements between the parents this matter has little relevance.

Subsection 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis 

1. The parents reside within sufficient proximity of one another not to cause any practical difficulty or expense of the children spending time with their father.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and 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

(a)  The wife

1. Dr E considered that overall, the wife has sound personal and interpersonal functioning.  He said that she has functioned well in the role of carer.  He said that she has some insecurities in her sense of herself which he said can lead to her being too ready to accommodate and accept a blaming narrative, or to split away and to react against that narrative.  But he said that she has engaged reliably in therapy following her mother’s death from suicide and also the breakdown of her previous marriage, and made good use of the therapy.

2. He also said that the wife had some insecurity in terms of her adequacy as a mother, which he thought “has been exacerbated and perpetuated by the past and ongoing paternal denigration of [her] as a person and parent”.  But he regarded the wife as being “robustly capable of meeting the children’s basic needs for food, shelter, and protection from harm, and also their more complex emotional, intellectual, relational and developmental needs”.  He thought her insecurity would be best addressed by parenting orders which would provide security to her in her parenting role and which would protect her from paternal denigrating, intrusive and threatening behaviours.  In addition, he recommended that the wife undertake therapy to address her insecurities.

3. Dr E made some comments about some excessive use of alcohol by the wife.  I shall refer to this matter below.

(b)  The husband

1. The husband has been the main breadwinner for the family and as such has not had the same amount of available time for the children as has the wife.  But it is clear that his contribution as a parent has been significant.  He has assisted in the care of the children as time has permitted.  This has included assisting with the preparation of the children’s meals and feeding them, bathing them, preparing them for bed, reading to them before sleep, playing games and entertaining them.  The husband has also delivered the children to day-care and school, cafes and restaurants, parties, friends’ homes, shops, beaches, parks and family social occasions.  The husband cared for the children each Friday evening when the wife went out socially.  He would also take the children to his parents’ home for a few hours on alternate weekends.

2. Dr E regarded the husband as being capable of providing day to day care for the children and of meeting their basic needs for food, shelter and protection from harm.  He also regarded the husband as being capable of meeting the children’s intellectual and developmental needs.  But he thought that the husband might struggle to meet the children’s more complex emotional needs over time.  This was because of what he described as the husband’s need for affirmation, possible aggrieved response to the lack of the same, and lack of empathic attunement. 

3. Dr E also expressed concern about the husband modelling what he described as coercive patterns of intimate relations within the children’s home and in relationship with them.  Taking account of this and the fact that the husband would likely wish to be much more than just an ordinary parent, that is, to put a lot of energy into positive times with the children and having a positive impact on their development, Dr E said that the children should spend “significant” time with the husband but well less than 50 per cent of the available time.

4. Dr E said that the husband demonstrated some personality dysfunction, incorporating some narcissistic personality traits but said that he does not have a personality disorder.  Dr E described these personality traits as the husband showing some self-importance, idealising of his own roles and relationships, a belief in his particular capacity to engage at the level of high-status people, an aggrieved and entitled response to inadequate admiration from the other, a sense of entitlement, and lack of empathic awareness of the impact of his behaviour upon others.

5. Dr E also said that the husband can resort to intimidating or aggressive strategies when in conflict or when feeling slighted or aggrieved.

Subsection 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. As indicated above, these children are young and there is nothing of particular significance here.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right

1. This is not applicable.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Dr E described the wife as having played a central, committed and attentive role in raising the children.  He said that she has had a consistent attitude of commitment to the children and to the responsibilities of parenthood.

2. Dr E said that the husband has consistently expressed an attitude of commitment to the children and to his own role as parent.  But Dr E was concerned that whilst that has been the husband’s intention he said that the husband has not understood or sufficiently considered the damage done to the children by intrusion upon or disrespect to their mother.  Dr E said that the husband had spoken with earnest engagement and enthusiasm about each child’s interests and pastimes, about each child’s developmental needs and his actions or plans to assist these.  This included maintaining communication with K’s teacher and L’s childcare.

3. Dr E said that following separation the husband appears to value and be prioritising the children and his parental role.

Subsection 60CC(3)(j) –  any family violence involving the child or a member of the child's family

1. In my view, it is clear that the husband has perpetrated a level of family violence against the wife.

2. Family Violence is defined in s 4AB of the Act as follows:

   Definition of family violence etc.

   (1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

   (2)  Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)  an assault; or

   (b)  a sexual assault or other sexually abusive behaviour; or

   (c)  stalking; or

   (d)  repeated derogatory taunts; or

   (e)  intentionally damaging or destroying property; or

   (f)  intentionally causing death or injury to an animal; or

   (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

3. Subsections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:

   (3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)  cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

4. The wife alleges that the husband has been verbally abusive and threatening towards her throughout the marriage and that, on occasions, he has perpetrated physical abuse upon her.  At interview with Dr E and during his cross‑examination the husband denied any threatening words or behaviour towards the wife.

5. There is a very considerable amount of detailed material before the Court in which the wife particularises her allegations.  Much time was spent during the hearing in testing these detailed allegations.

6. In my view, bearing in mind that to the parties’ credit they have been able to arrive at an accommodation concerning parenting arrangements for the children, and not losing sight of the reality that each of them will have an essential ongoing responsibility to parent the children to the best of their ability, it would be less helpful to set out in detail all the allegations and the evidence in relation to them, than to refrain from doing this.  Having said this, I note that the wife alleged that the husband perpetrated physical abuse upon her on at least two occasions and that he was verbally abusive towards her on at least 15 occasions.

7. One of the incidents of alleged physical abuse was on 27 April 2011.  The wife said that the husband became frustrated when emptying the rubbish bin and swore at her for filling the bin.  She said she asked him to stop swearing and hit him with an orange juice bottle.  She said that later that day the husband twisted her arm behind her back as she was holding K.  She said that the husband hit her arm which bounced backwards and hit K in the face. The wife said that the husband then returned to the kitchen and put his hands around her throat. The wife left the parties’ home with the child for a few days.

8. The wife telephoned her friend, Ms AA and informed her that the husband had put his hands around her neck and squeezed so hard that it left a mark.  That afternoon the wife and Ms AA met initially at Suburb G and subsequently at a hotel at Suburb DD.  Ms AA said that she could see faint fingerprint marks on the wife’s neck.  The wife also annexed to her affidavit colour photographs dated 27 April 2011 which showed red marks on her neck.

9. As I have said, I have a favourable view of Ms AA and consider her evidence as likely to be reliable.  In my view, her evidence supports the wife’s allegation about being physically abused by the husband on 27 April 2011.  Accordingly, I find on the balance of probabilities that it is more probable than not that the husband perpetrated acts of physical abuse against the wife on that occasion.

10. Another incident of alleged physical abuse was on 9 August 2014.  This appears to have precipitated the parties’ separation.

11. The wife attended a lunch with some of her girlfriends.  Apparently service was very slow and the wife was absent from home for more than six hours.  She sent several text messages to the husband informing him that she would be late home.

12. Upon her arrival home the husband was very angry.  He said she returned home in an intoxicated state.  He had a commitment to travel overseas for work the next day.  The parties have given different accounts about events of the evening.  What is clear is that there was a serious argument.  The husband conceded that he verbally abused the wife.

13. The wife said that the husband grabbed her arm, squeezed it tightly then twisted it which caused her immense pain.  The husband denied this.  The husband said the wife hit him a number of times.  The parties were arguing in the bedroom ensuite because the husband was in the process of bathing K when the wife arrived home.  The wife tried to push past him.  She said that he punched her in the face and she fell to the ground.  The husband denied he punched her.  He said that as she went past him he gave her “a bit of a flick of my hip”.  It is clear that then the wife fell down.

14. The wife called the police and they attended at the parties’ home. 

15. This incident has been the subject of considerable scrutiny in the criminal courts and ultimately the husband’s conviction of assault was dismissed on appeal.  But even on the husband’s version, that is, that he gave the wife “a bit of a flick of (his) hip”, in my view, this reflects poorly on him because this was immediately followed by the wife falling to the ground.  I understand him to say this was because she was inebriated.  That might well have been the case because the husband’s father attended at the home after the incident at the husband’s request.  He observed the wife and said that she appeared unsteady on her feet and was swaying which caused him to believe that she was intoxicated.

16. Even if the wife was intoxicated, in my view, this would not excuse the husband’s behaviour towards her.

17. I am also satisfied that on a very considerable number of occasions the husband has directed grossly insulting and derogatory language towards the wife.  He has conceded this and said that “sometimes (he) was over the top”.  I have had the benefit of listening to taped conversations including appalling disrespectful language and insults directed to the wife by the husband.  Such verbal abuse has included repeated derogatory taunts.

18. In my view, there can be no doubt that this behaviour by the husband falls within the definition of family violence in s 4AB(1) of the Act.

Subsection 60CC(3)(k) –  if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

1. As indicated above, in 2014, the husband was charged with assault and an ADVO was issued for the protection of the wife. In 2015 the husband was convicted of assault occasioning actual bodily harm.

2. As also indicated above, the husband’s assault conviction in 2015 was later dismissed on appeal.  In my view, no inference adverse to the husband can be drawn arising from this.

Subsection 60CC(3)(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

1. These parents have a very poor relationship and have been locked in litigation over many years.  So it is difficult to determine whether any particular order would be least likely to lead to the institution of further proceedings in relation to the children.

Subsection 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. Dr E recommended that the Court make an order that the husband attend an individual or group program of therapy aimed at assisting men who have engaged in coercive behaviours or patterns of family violence such as Relationships Australia’s “Taking Responsibility” or Catholic Care’s “Choosing Change” programs.  The father said that if such a program was ordered he would attend the program.

2. As indicated above, the parents have agreed to make arrangements to attend upon a family therapist as recommended by Dr E or otherwise agreed.

Primary Considerations

1. As indicated above, the first of the primary considerations is the benefit to the children of having a meaningful relationship with both of their parents.

2. I am satisfied that the children have a close and loving relationship with the husband. Dr E described this as a positive relationship and observed the children to be happy in their father’s presence. Dr E conceded during cross-examination that because considerable time had passed since he interviewed the children he did not know what the current state of their relationship with the husband was.  But the children have spent time regularly with their father and the reports are positive.

3. For example the paternal grandfather said that he had participated in all but one Saturday afternoon changeover following which the children went into their father’s care. So he has observed them regularly with the husband and said that the children appear happy and content in the husband’s care. The paternal grandmother said that she has observed the children being happy in the presence of the husband and has not observed them to become upset at changeover.

4. As also indicated above, Dr E assessed the husband as being capable of meeting most of the children’s needs.

5. In all the circumstances, in my view, it is clear that the children derive considerable benefit from having a meaningful relationship with the husband. The wife supports this by her commitment to the current parenting arrangement as set out in the orders which I made by consent on 31 August 2017.  Accordingly, in my view, the children will gain considerable benefit from the opportunity to further develop their meaningful relationship with their father.

6. This has to be balanced taking account of the second primary consideration. This requires the Court to consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. And this consideration is to be afforded greater weight than the first primary consideration.

7. Dr E expressed the opinion that there is not any significant risk of emotional or physical abuse of the children or neglect of them in the wife’s care.

8. The husband alleged that the wife often used alcohol to excess such as on 9 August 2014, the occasion of the incident which precipitated the parties’ separation.  Dr E described the wife’s pre-separation drinking of intermittent consumption of four or more standard alcoholic drinks as hazardous drinking in that it placed her at increased risk of harm through accident, injury or interpersonal conflict.  But there was no evidence of excessive use of alcohol by the wife since 9 August 2014.

9. Dr E considered the husband to have a vulnerability to reactive aggression or coercive aggression towards adults.  He said the risk of verbal or physical aggression towards the children is present but is low.  He thought the risk would be reduced by the husband having less than equal time with the children, by support of the paternal grandparents and over time by the children growing older, more adaptable and more capable.

10. As I have said, I am satisfied that some of the husband’s behaviour falls within the definition of family violence. It is largely for this reason that it is submitted on behalf of the wife that the children’s best interests would best be served by spending three nights per fortnight with their father rather than the four nights which the husband is seeking.

11. Dr E gave careful thought to the amount of time he thought it was appropriate for the children to spend with the husband in all the circumstances. He expressed some concern about what he described as the husband modelling coercive patterns of intimate relations within the children’s home and particularly as they grow up into adolescence. But he said that this was an issue of “dose”, by which he meant the amount of time the children would spend with the husband. He said that this would be well less than 50 per cent of the time. He was clear in his recommendation that four nights per fortnight would be consistent with the best interests of the children.

12. This recommendation is consistent with the view I have formed taking account of all relevant considerations.  Accordingly, I propose to make an order that the children spend time with their father from after school Thursday until before school Monday each alternate week.

Christmas

1. The parties were also in dispute about the appropriate parenting arrangements for Christmas.

2. On the one hand, the wife sought orders which would enable the children to spend Christmas Day with each of the parents in alternate years.  On the other hand, the husband said that the wife has been in the habit of celebrating Christmas in accordance with European custom, that is, by celebrating it on Christmas Eve and therefore he should be able to have the children each Christmas Day.  He wishes to have the children with him every Christmas Day from 10.00 am to 4.00 pm.  He proposes that the children be with their mother every year from Christmas Eve until 10.00 am on Christmas Day.  The wife does not want such an arrangement because it would have the effect of her spending every Christmas Day by herself and she considers it important for the children to share in festivities with both parents.

3. The Independent Children's Lawyer included draft orders for Christmas in her Final Minute but she did not wish to be heard in relation to Christmas arrangements.  I propose to make Christmas orders in accordance with the Independent Children's Lawyer’s Final Minute because I regard it to be in the children’s best interests to be able to share the special time at Christmas with each of their parents.

Restraints sought by the wife

1. In relation to changeover, both parties sought changes to the current orders.  They agreed to the following:

   That for the purposes of changeover:

   (i)If changeover is to occur at school/preschool, the father or his nominee is to collect the children from school at the commencement of time or deliver the children to school at the conclusion of time; and

   (ii)If changeover is to occur on a non school/preschool day, then the mother or her nominee shall deliver the children to the home of the father at the commencement of time and the father or his nominee shall return the children to the home of the mother.

2. The wife sought the following additional orders:

   (1)That for the purposes of changeover when it does not take place at school or preschool, the husband shall not approach within 5 metres of the wife or seek to converse with her.

   (2)That the husband be restrained from entering within the boundaries of the property upon which the wife from time to time resides.

3. The husband opposed such orders.

4. Turning to the second order sought, as senior counsel for the husband submitted, the husband has no right to enter upon the wife’s property and would be trespassing if he did so.  Accordingly, there is no need for such an order.  I accept this.

5. In relation to the first restraint sought, I do not propose to make such an order.  If the wife finds the situation unacceptable then she simply arranges for a nominee to deliver and collect the children.

6. The wife also sought the following order:

   That in the event either of the children are required to attend any sporting or extra-curricular activities on a non-school day, the parent with the care of the children on that particular day shall take the child/children to such activity and the other parent shall otherwise be restrained from attending that event.

7. The husband opposed such an order.

8. It was submitted that the wife is fearful of the husband and that if both parents were to attend the children’s sporting or extra-curricular activities on a non-school day there might be argument or upset between them which could cause distress to the children.

9. The most important consideration is that the children be able to enjoy these activities without the risk of being upset by inappropriate behaviour by their parents.  As I have said the parents have a poor relationship which has been characterised by a high level of conflict.  Dr E recommended that the parent in whose care the children are at the time take the children to the activity and the other parent not attend.  But, in my view, the Independent Children's Lawyer proposed a sensible compromise which I shall accept as follows:

   That the parent without the day to day care of the children at any given time be restrained from approaching the other parent and the children when the children are participating in sporting, extra-curricular events or school functions without the express prior written consent of the other party.

10. The remaining issue for determination is the following order sought by the wife which is opposed by the husband:

    That the husband be restrained from approaching the wife and the children whilst they are in the presence of the wife in any public place and/or otherwise engage in any conduct that intimidates or harasses their mother.

11. In support of such an order the wife says that she is fearful of the husband.  I am conscious of the opinion of Dr E that the wife needs to feel safe in order to be able to best parent the children.  But it is also a serious matter to put in place such a restraint.  I note that the parents have been able to resolve many of the parenting matters in issue between them.  I note the husband has conceded that he has been “too harsh” towards the wife, that he is “way too blunt” towards her, that he needs to be more respectful and a lot softer towards her.  I also note that the parties have agreed to attend family therapy.  In all the circumstances, including my intention to make the restraint in relation to sporting and extra-curricular activities, I am not persuaded that it is necessary to make such an order.

Parental responsibility

1. As indicated above, such is the level of communication dysfunction between the parents, their very poor relationship and their long history of conflictual behaviour that it, in my view, would not be helpful for the children if the parents were to continue to share parental responsibility for them.  In the children’s interests, sole parental responsibility will have to be ordered.  The wife is the children’s primary parent and the parent with whom the parties agree the children will live.  In these circumstances, in my view, the wife is the parent best placed to exercise this responsibility.  The children would benefit from their father having input to major decisions about them.  Dr E recommended that the wife give the husband opportunity for such input.  I propose to make orders which will enable the husband to have such opportunity.

Facetime contact

1. The husband seeks an order to enable the children to have Skype or Facetime communication with him.  In my view, in all the circumstances of this complex case, telephone communication as provided pursuant to the consent orders will suffice.  Dr E said that it was probably better to “maintain the boundaries of the [wife’s] home” and I accept this.

PROPERTY

1. In the property proceedings between the parties the main issue of contention is the distribution of the controlled monies account held by the husband’s solicitors.

Applications

1. The wife is seeking final property orders to the following effect:

   ·That the parties cause the husband’s solicitors to pay to the wife the entire balance in the controlled monies account held by the solicitors.

   ·That the wife be declared to be entitled to the entirety of the funds in the controlled monies account established by the wife’s solicitors.

   ·That the husband transfer to the wife his interest in the German motor vehicle registration number ...

   ·That the parties otherwise are solely entitled to the exclusion of the other to all property and chattels in the possession of each of them respectively.

   ·That each party be solely liable for and indemnify the other against any debts in their sole name respectively.

   ·That an enforcement order be made as specified.

   ·That the husband pay the wife’s costs of these proceedings.

2. On the other hand, the husband seeks orders to the following effect:

   ·That the husband and wife cause payment to the wife out of the controlled monies account established by the husband’s solicitors the sum of $250,000 and the husband be entitled to the balance of that account.

   ·That the husband transfer to the wife his interest in the German motor vehicle described above and the wife indemnify the husband against all liability whatsoever arising out of and in connection with the said motor vehicle whether past, present or  future.

   ·That the parties otherwise be declared the sole owner of shares, bank accounts, superannuation entitlements and personal effects in their name and control respectively.

   ·That the wife pay the husband’s costs of these proceedings.

The Applicable Law

1. Subsection 79(1) of the Act provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.

2. Subsection 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. Subsection 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).

4. The operation of s 79 was the subject of consideration by the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). In this case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:

   35.… The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”… nevertheless, three fundamental propositions must not be obscured.

5. The High Court said that the first of these propositions is for the Court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

6. The second is that although s 79 confers a broad power on the Court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.

7. The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.

8. And the High Court majority went on to say at page 122 of Stanford as follows:

   41.…  The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

Balance Sheet Issues

1. To the parties’ credit they were able to agree about most of the assets and the values thereof but there are a number of issues as follows.

2. The first issue is whether certain payments should be added back to the assets.

3. On 10 September 2014 Rees J made orders to the effect that each of the parties establish a controlled monies account in the names of their respective solicitors and to pay specified amounts from their various accounts to these controlled monies accounts apart from $150,000 each which they could then use as they saw fit.

4. The wife paid approximately $89,272 of her $150,000 towards her legal costs and spent the balance on living expenses.  In accordance with the principles set out in Chorn & Hopkins (2004) FLC 93-204 I propose to include the $89,272 spent on legal costs in the Balance Sheet as an addback.

5. The husband said that he paid income tax and capital gains tax obligations in the amount of $130,000 from his $150,000.  But in fact the amount was $125,000 which was for the financial quarters ending 30 September 2014 and 31 December 2014.  Counsel for the wife established during cross-examination that an amount of $5,098 which the husband included in calculating the $130,000 was in fact a tax refund paid to the husband not a tax liability paid.  I accept that the husband paid $125,000 in tax.  But it was submitted on behalf of the wife that it was unnecessary for the husband to pay the $130,000 from his $150,000 partial property settlement because he had a highly paid job in 2014.  Taking account of this, it was submitted that the Court would add back to the pool of property $150,000 against the husband for his partial property settlement.

6. I do not propose to do so because, bearing in mind that the husband has paid for the benefit of the wife and children approximately $138,000 between September 2014 and December 2016, in my view, to permit him to pay his tax from the $150,000 without bringing this back to the Balance Sheet as an add on is reasonable.  But I do propose to add back the balance, which is $25,000.

7. I also propose to add back the $50,000 he received by way of partial property settlement under the orders of Stevenson J on 17 November 2015 and the subsequent $25,000 also received as a partial property settlement pursuant to the orders of myself on 21 October 2016.  This is a total of $100,000 to be added back.

8. In relation to the husband’s legal costs paid, with regard to his family law costs paid these are in the amount of $287,174.  The husband borrowed initially $170,000 from his father and used this to pay family law fees and recently, his father paid a further approximately $87,000 to the husband’s solicitor.  Again, in accordance with the usual principles the $287,174 will not be added back and whatever amount the husband owes his father will have to be managed between the husband and his father.  It will not be included in the Balance Sheet.

9. The husband has paid $121,714 in legal fees incurred in relation to his criminal proceedings. These will not be included in the Balance Sheet but will be taken into account pursuant to s 75(2)(o) of the Act.

10. On this basis the parties’ legal and equitable interests in property (and superannuation) are as follows:

$

ASSETS

1.         Wife’s controlled monies account

95,417

2.         Wife’s Westpac Choice account #...49

870

3.         Wife’s Westpac E-Saver account #…07

7

4.         Wife’s M Ltd account #...60

17

5.         Wife’s M Ltd shares

1,349

6.         Wife’s EE Ltd shares

8,572

7.         Wife’s FF Ltd shares

8,055

8.         (Wife’s) German motor vehicle

37,680

9.         Wife’s legal fees paid (addback)

10.      Husband’s controlled monies account

11.      Husband’s National Australia Bank account #...00

12.      Husband’s National Australia Bank account #...13

13.      Husband’s partial property settlement

89,272

545,017

2

13, 547

100,000

$899,805

LIABILITIES

The husband has a liability to his father for $257,000 for legal costs paid.  As indicated above, this will not be brought to the Balance Sheet and he will remain liable for any outstanding legal fees.

The wife has a liability of at least $123,470 for legal fees.  Like the husband, she will be liable for these and they will not be brought to the Balance Sheet.

Both the husband and the wife have some present liabilities and these will not be brought to the Balance Sheet, my view being that it would be just and equitable for these to be borne individually.

$

SUPERANNUATION

1.         Wife’s MM Super Fund

2,412

2.         Wife’s Company T Super

123,803

3.         Wife’s GG Ltd Employer Super

79,262

4.         Wife’s M Ltd Employee Super

109,725

5.         Husband’s HH Ltd Superannuation Trust

6.         Husband’s II Ltd Super

175,209

591

^{_____________}

$491,002

Subsection 79(2)

1. As indicated above, sub-section 79(2) of the Act provides:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:

   In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. 

3. In the present case, the parties lived together for seven years and have two children.  As indicated above, pursuant to orders made on 10 September 2014 controlled monies accounts were established in the names of the parties’ solicitors respectively.  If orders were not made the parties’ funds would not be paid out to them which would be most unfair.

4. In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

1. At the commencement of cohabitation the wife owned the following:

   1.Savings in Westpac Maxi Direct account  $447, 253

   2.Savings in Westpac One Account  $44,818

   3.Company KK shares  $4,680

   4.M Ltd shares  $3,593

   5.Company JJ shares  $3,307

   6.Company P Fund shares  $3,189

   7.4WD motor vehicle  ?

   8.Furniture and household contents             ?

   _________

   $506,840

2. The wife also had superannuation benefits comprising $91,775 in Company P Superannuation, $37,611 in LL Superannuation and $2,069 in MM Super, a total of $131,455.  Accordingly, the wife had assets with a value in excess of $638,000.

3. The wife was working fulltime at Company R as a senior manager.  The wife continued working in this position until May 2009 when she was retrenched.  She received a redundancy payment of $51,000.  Shortly after this the wife became pregnant.  She did not work again in income-producing work until June 2011 when she commenced work one day per week as a consultant.  This work concluded in September 2011.  The parties subsequently underwent IVF for three cycles and the wife did not resume paid employment until 2 September 2015 when she commenced in management with M Ltd.

4. The wife continued to work in this position until September 2016.  She then worked also with M Ltd 30 hours per week from 24 October 2016 and continues to do so.

5. At the commencement of cohabitation the husband owned the following:

   1.The property at Q Street, Suburb G which he had purchased some months previously for $1,225,000 subject to a mortgage of approximately $945,000  $280,000

   2.Savings - approximately  $52,000

   3.A 2German motor vehicle  ?

   4.Superannuation – approximately  $110,000

6. Accordingly, he had assets with a value in excess of $442,000. 

7. As indicated above, at the commencement of cohabitation the husband was working in full-time employment at X Bank.  In 2009 the husband commenced employment with Company T but in February 2013 he was made redundant.  He was unemployed until June 2013 when he commenced employment as a consultant with D Pty Ltd.  The husband continued to work with D Pty Ltd until 31 July 2015 when there was a substantial reduction in D Pty Ltd’s workforce and the husband’s employment was terminated.  The husband remained unemployed until October 2016 when he commenced working in a short-term contracting position with Z Ltd during November and December 2016.  On 16 January 2017 the husband commenced full-time employment with his current employer OO Ltd.

8. Both parties have made substantial financial contributions.

9. They have also made a myriad of other contributions.

10. As indicated above, the parties renovated the Suburb G apartment.  The husband was project manager and assisted the tradespersons with some of the labour and other physical work, including removing waste material, carrying building material including a substantial quantity of pebbles used in the balcony renovation, as well as supervision.  The husband also paid for the renovations.  The wife designed finishes and selected appliances and materials used in the renovation.

11. Both parties have made contributions as homemakers and parents.  But it is clear that the wife has been the children’s primary parent, having remained out of the full-time paid workforce for substantial periods following K’s birth.  This is not to say that the husband did not make significant contributions as homemaker and parent because, despite some endeavours by the wife to minimise such contributions, I am satisfied that he did.  Both parties were involved in the domestic and household duties but I am satisfied that the wife did more of this than the husband.

12. Post separation the husband paid the rent and contents insurance in relation to the former matrimonial home in which the wife and children lived, spousal maintenance of $763 per week and child support.  But, as indicated above, the husband’s employment ceased in July 2015 and from this time the wife commenced to fund the children’s needs without much assistance from the husband.  This was the case certainly after November 2015 when the husband only paid $51 per week child support for both children.  But I also note that since September 2014 the husband did make financial contributions which totalled approximately $138,000 being rent and contents insurance, spousal maintenance, child support and registration and insurance costs in relation to the motor vehicle owned by the wife.  In addition, he paid health insurance, school fees, speech therapy, reading lessons, tennis lessons and running lessons.

13. There was a strong submission on behalf of the wife that the Court should assess superannuation contributions separately from those with respect to non-superannuation assets.  This was on the basis that the wife had more superannuation than the husband at the commencement of cohabitation and that she has more superannuation than the husband currently.  It was further submitted that if the Court was to do this, then it would be appropriate to assess contributions from the commencement of cohabitation to separation as having been equal.

14. I do not propose to make a separate assessment of contributions in relation to superannuation.  In my view, the Court can arrive at a just and equitable order by assessing contributions to superannuation and non-superannuation assets on a global basis.

15. In my view, in approaching the question of assessment of contributions in this way, the contributions by the wife up to the time of separation have been a little greater than those of the husband because of the higher level of her initial contributions to property and superannuation compared with those of the husband.  But this is only by a small margin.

16. In relation to post-separation contributions, again, in my view, the assessment falls slightly in favour of the wife because she had most of the children’s care following separation and she had to bear most of the children’s costs after the husband lost his employment with D Pty Ltd.  But the difference is modest.

17. In all the circumstances, I assess the wife’s contributions overall as having been 53 per cent and those of the husband 47 per cent.

Subsection 75(2) matters

1. The wife is 45 years of age and in good health.  She has had many years of experience.  The wife has the degree with a double major.  Her weekly income from her paid employment is $3,442 from her employment with M Ltd and some very modest dividends from her shares.  In my view, on all present indications she has the capacity to continue to work at a similar level to her current position for the foreseeable future.

2. I have referred above to the wife’s superannuation.  Clearly she has been able to accumulate superannuation during the course of the marriage.

3. The husband is 47 years of age and in good health.  He has had many years’ experience working.  His weekly income is $4,211 from his position with OO Ltd.

4. The parties’ commitments for their support are as set out in their financial statements.  The wife is living in the rented former matrimonial home with the children and the husband is residing with his parents.

5. The wife has the primary care of the parties’ two children and under the orders I propose will continue to have this.

6. The husband has been assessed to pay child support of $168.54 per week.

7. It was submitted on behalf of the wife that the husband has a greater income earning capacity than the wife.  It was further submitted that the husband has a greater income earning capacity than he is exercising at the present time.  It was submitted that the husband was prepared to remain unemployed following the loss of his position with D Pty Ltd and that it suited him to do so and to live with his parents for the purposes of some perceived advantage to him in relation to these proceedings.  I do not accept this latter submission.  The husband included in his affidavit quite detailed evidence about his endeavours to obtain employment.  The husband said that in his profession, corporate advisory roles are limited and he has had to accept a position at his present level.

8. I am not persuaded that the husband preferred to be unemployed as suggested and I accept that the husband is working generally at a position commensurate with his qualifications and experience.  Having said this, I would accept that the husband has a greater income earning capacity than does the wife although not by any large margin.

9. In my view, in order to achieve a just and equitable order it will be necessary to make some set-off of the property and superannuation in favour of the wife.  This would take account of the fact that she will have the primary responsibility for the children and also a level of difference between the parties in terms of their capacity to earn an income. I also take account of the fact that the husband has paid $121,714 in legal fees in relation to the criminal law proceedings

10. In the case of Clauson and Clauson (1995) FLC 92-595 the Full Court of this Court indicated that trial judges need to consider the value of the adjustment in real terms. The Full Court said at page 81,911 as follows:

    There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

11. It was submitted on behalf of the wife that the appropriate set-off would be in the range of 10 - 15 per cent.  On the other hand, it was submitted on behalf of the husband that the range would be 5 - 7.5 per cent.

12. In my view, taking account of all the relevant circumstances, the appropriate set‑off is 10 per cent.

Conclusion and fourth step

1. The wife is to have 63 per cent of the property and superannuation.  This is property and superannuation with a value of $876,208 (63 per cent of $1,390,807 = $876,208).

2. The wife has the following property and superannuation:

$

1.         Wife’s controlled monies account

95,417

2.         Wife’s Westpac Choice account #...49

870

3.         Wife’s Westpac E-Saver account #...07

7

4.         Wife’s M Ltd First account #...60

17

5.         Wife’s M Ltd shares

1,349

6.         Wife’s EE Ltd shares

7.         Wife’s FF Ltd shares

8.         (Wife’s) German motor vehicle

9.         Wife’s legal fees paid (add-back)

10.      Wife’s MM Super Fund

11.      Wife’s Company P Super

12.      Wife’s GG Employer Super

13.      Wife’s M Ltd Employee Super

8,572

8,055

37,680

89,272

2,412

123,803

79,262

109,725

^{_____________}

$556,441

1. To achieve property and superannuation with a value of $876,208 the wife would require additional property with a value of $319,767 ($876,208 - $556,441 = $319,767).  This would be paid from the husband’s controlled monies account.

2. On the other hand, the husband is to have 37 per cent of the property and superannuation.  This is property and superannuation with a value of $514,599 (37 per cent of $1,390,807 = $514,599).

3. The husband has the following property and superannuation:

$

1.         Husband’s controlled monies account

545,017

2.         Husband’s National Australia Bank #...00

2

3.         Husband’s National Australia Bank #...13

13,547

4.         Husband’s partial property settlement

5.         Husband’s HH Ltd Superannuation Trust

6.         Husband’s II Ltd Super

100,000

175,209

591

^{_____________}

$834,366

1. If the husband paid the wife the sum of $319,767 from his controlled monies account (current balance $545,017) this would leave him with property and superannuation with a value of $514,599 ($834,366 - $319,767 = $514,599).

2. On this basis the wife would have the money in her accounts ($96,311) plus the payment of $319,767 which would be $416,078, the other property referred to above and her superannuation.  But she owes money to her lawyers and she has some credit card and personal liabilities to pay, although I have not included these in the Balance Sheet.  These would be in the vicinity of $220,000.  After paying her liabilities the wife would have an amount in the vicinity of $200,000 which she could use as a deposit on a home or to pay rent.

3. The husband would have the balance of monies in his controlled monies account ($225,250), his other monies in accounts ($13,549) and his superannuation ($175,800).  But the husband owes his father $257,000 for payment of his legal fees and he has a small credit card liability.  The balance of his controlled monies account and his other accounts would be able to extinguish most of this debt.

4. Accordingly, the husband would be left largely debt free but with his superannuation and earning capacity.  The wife would have approximately $200,000, a car, her superannuation and her earning capacity.  But she also has the primary responsibility for the children.

5. In my view, this would be a just and equitable result.

Orders

1. A long time has passed since the hearing, and I apologise to the parties for not being able to complete this judgment sooner. I propose to suspend commencement of the operation of the property orders for a couple of weeks to enable the parties to make any further submissions they might wish to make in relation to the form of the orders only.

I certify that the preceding two-hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 2 August 2018.

Associate:   

Date:  2 August 2018

“A”
MINUTE OF CONSENT ORDER

1. That the children live with the Mother.

2. That the children spend time with the Father as follows:

   2.1During school terms:

   2.1.1. Commencing on the first weekend following the date of the Orders until    the conclusion of Term 3, 2017, each alternate weekend from the conclusion of school/preschool Friday until 4.00pm Saturday;

   2.1.2. Commencing from Term 4, 2017, and until the conclusion of Term 4, 2017, each alternate weekend from the conclusion of school/preschool Friday until 4.00pm Sunday;

   2.1.3. Commencing in Term 1, 2018, each alternate weekend from the conclusion of school/preschool Friday to the commencement of school/preschool Monday.

   2.2During school holiday periods:

   2.2.1. For the school holiday period at the conclusion of Term 4, 2017, for two separate one week blocks in relation to K and for two separate three night blocks in relation to L with such time to coincide. In the absence of an agreement between the parties, in the first and third week from 10.00am Saturday to 4.00pm the following Saturday in relation to K and from 10.00am Saturday to 4.00pm Tuesday in relation to L;

   2.2.2. During the school holiday periods occurring at the conclusion at Terms 1, 2 and 3 in 2018, for one week of each period and in the absence of an agreement between the parties, in the first week from 10.00am Saturday until 4.00pm the following Saturday;

   2.2.3. During the school holiday periods occurring at the conclusion of Term 4, 2018 for each alternate week and in the absence of an agreement, in the first week from 10.00am Saturday to 4.00pm the following Saturday and each alternate week or partial week thereafter.

   2.2.4. For one half of each school holiday period in 2019 and each year thereafter and in the absence of an agreement for the first half in 2019 and each alternate year thereafter and for the second half in 2020 and each alternate year thereafter except as provided for in Order 2.2.5.

   2.2.5.Order 2.2.4 is varied commencing with the holiday period after Term 2 in 2019 and each alternate year thereafter so that the children’s time with the father shall be suspended during the Term 2 holiday period each alternate year, and in those years the children shall spend time with the father for the whole of the school holiday period after Term 3.

   2.7Easter Sunday from 1.00pm to 4.00pm

   2.8Father’s Day from 10.00am to 4.00pm;

   2.9On the father’s birthday each year from after school until 7.00pm if a school day and from 10.00am until 4.00pm if not a school day; and

   2.10Other times as agreed between the parties.

3. Notwithstanding Order 2, that the Father’s time with the children shall be suspended on the following occasions:

   3.1Easter Sunday from 10.00am to 1.00pm;

   3.2Mother’s Day from 10.00am to 4.00pm;

   3.3On the mother’s birthday each year from after school until 7.00pm if a school day and from 10.00am until 4.00pm if not a school day;

4. For the purposes of defining a school holiday period in Order 2 and unless otherwise agreed:

   4.1A school holiday period commences on the day immediately following the last day of school in the relevant term of the school to which the children attend;

   4.2A school holiday period does not include pupil free days; and

   4.3Time pursuant to Order 2.1 shall resume on the first weekend of the relevant school term.

5. That the handover arrangements for the children pending final Orders shall be in accordance with Order 6 to 9 of the Orders made 11 January 2016.

6. That when the children spend time with the mother or father in accordance with these Orders, and on a without admissions basis, the parties be restrained from:

   6.1Swearing at any of the children;

   6.2Physically disciplining any of the children by hitting them or striking them and the parties shall use their best endeavours to ensure that any third party does not physically discipline the children;

   6.3Making critical or derogatory remarks about the other parent and/or the other parent’s family in the presence or hearing of the children, or directly via e-mail, telephone or text to the other party.

1. That the party without the day to day care of the children at any given time be restrained from approaching the other parent and the children when the children are participating in sporting, extra-curricular events or school functions without the express prior written consent of the other party.

2. That both parties do all acts and things, and sign all necessary documents to authorise any school/s attended by the children to provide to each parent all particulars of the children’s schooling, including but not limited to the provision of school reports, notices of school photographs, circulars sent to parents, notices of school excursions and any other activities to which the children are participants.

3. That both parties do all acts and things, and sign all necessary authorities to any medical practitioner, specialist, orthodontist, psychologist and/or any other health professional to enable both parents to obtain particulars in relation to the children’s health.

4. That in the event either party wishes to travel overseas with the children, the travelling parent shall provide to the other parent, at least two (2) months prior to the travel, except in circumstances of urgency in which case as much notice as practicable, the following:

   10.1A copy of the itinerary;

   10.2A copy of the return tickets;

   10.3Telephone contact details for the children whilst they are overseas.

5. That both parties do all such acts and things, and sign all necessary documents from time to time to ensure that both children have current Passports.

6. That the mother shall retain the children’s Passports at all times, save to allow the father to travel with the children in accordance with the provisions of Order 10 above and shall provide the Passports to the Father not later than one month before the children’s proposed travel, and the Father shall return the Passports to the Mother within 14 days after his return.

7. That each party must keep the other notified of their current residential address and provide the other with written notice of any change in their residential address, email address and telephone numbers within 48 hours of any change.

8. If there is a severe medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the children must:

   14.1Immediately contact the other party; and

   14.2As soon as practicable, provide the other party with all documentation and information in their possession regarding the incident.

9. That the parties make all arrangements required to attend upon a Family Therapist as recommended by Dr E or otherwise agreed between the parties. That leave be granted for the identified Family Therapist to be provided with a copy of Dr E’s Report.

10. That the children have telephone communication with the father each Wednesday with the communication to be initiated by the Mother between the hours of 7:00pm and 7:30pm, and facilitated by the Mother enabling the children to use her telephone.

11. That each party pay the sum of $5,497.50 to NSW Legal aid within 28 days of the date of these orders in accordance with the Costs Estimate for the provision of the Independent Children’s Lawyer.