CORONA & CORONA

[2019] FCCA 995

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORONA & CORONA [2019] FCCA 995

Catchwords:
FAMILY LAW – PROPERTY – Urgent lump sum spouse maintenance – periodic spouse maintenance – interim property distribution – PARENTING – equal shared parental responsibility – substantial and significant time.

Legislation:

Family Law Act 1975 (Cth), ss.72, 77

Evidence Act 1995 (Cth), s.140

Applicant: MS CORONA

Respondent: MR CORONA

File Number: SYC 5136 of 2018

Judgment of: Judge B Smith

Hearing date: 15 March 2019

Date of Last Submission: 15 March 2019

Delivered at: Sydney

Delivered on: 18 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Battley

Solicitors for the Applicant: Bennelong Legal

Counsel for the Respondent: Mr Wong

Solicitors for the Respondent: Watts McCray (NSW) Pty Ltd

ORDERS

1. The matter be listed on 12 June 2019 at 9:30am for mention.

2. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

3. The respondent, Mr Corona born … 1964, make a further urgent lump sum spousal maintenance payment of $10,000 to the applicant, Ms Corona born … 1972, by way of electronic funds transfer by no later than 4PM on 20 March 2019, in addition to the payment of $10,000 ordered on 15 March 2019.

4. The respondent pay to the applicant by way of spousal maintenance the sum of $1,000 per week commencing from a payment on 22 March 2019 and continuing until further Court Order.

5. The respondent pay to the applicant by way of interim property settlement the sum of $150,000 by way of 3 monthly instalments of $50,000:

   (a)payment of the first  $50,000 to occur no later than 18 April 2019;

   (b)payment of the second $50,000 to occur no later than 18 May 2019;

   (c)final payment of the third $50,000 to occur no later than 18 June 2019.

6. All payments from the respondent to the applicant shall be deposited directly to the applicant’s bank account.

   (a)BSB Number …

   (b)Account Number …

7. The respondent to continue paying for the children’s school fees and activity fees on the same basis as which he has been voluntarily paying to date.

8. Upon receipt by the applicant of the two payments of $10,000 (being $20,000) referred to in the Order 2 of 15 March 2019 and Order 3 above,

   (a)The applicant shall vacate the property at Property A (“Property A”) and the respondent shall have sole right of use and occupation of the property and the applicant shall not enter upon the property.

   (b)As a condition of the right to sole use and occupation the respondent shall be responsible for payment on time of all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property, and shall indemnify and shall keep indemnified the applicant in respect of all liabilities in relation to the property whenever and however arising and shall not further encumber the property without the applicant’s written consent or an Order of this Court.

9. The respondent shall have the sole right of occupation of the property at Property B and the respondent be solely responsible for making arrangements for letting that property including signing all management agreements and holiday rental agreements in relation to that property.

10. The respondent shall cause all holiday rental income received by him in relation to the Property B property to be deposited onto the mortgage with the … Credit Union being account ending #…, and shall not further encumber the property without the applicant’s written consent or an Order of this Court.

11. Liberty is granted to the applicant to approach the Court in Chambers to relist the matter if Order 2 of the Orders made on 15 March 2019 has not been complied with by no later than 4PM on 20 March 2019, or if the respondent defaults in respect of any payment under these Orders, to reconsider the respondent’s sole use and occupation of Property A.

12. That the parties shall have equal shared parental responsibility for the children, [X] born … 2005 and [Y] born … 2007.

13. The children shall live with the applicant.

14. The children spend time with the respondent as follows:

    (a)In week 1:

    (i)from after school Thursday until before school Monday;

    (b)In week 2:

    (i)from after school Wednesday until before school on Thursday;

    (c)For one half of each gazetted New South Wales school holidays, either as agreed between the parties or failing agreement being the first half in even numbered years and the second half in odd numbered years.

15. The children shall spend time with the respondent on Father’s Day each year if it falls on a weekend when the children are not in his care, either as agreed between the parties or failing agreement, from 9am to 5pm.

16. The children shall spend time with the applicant on Mother’s Day each year if it falls on a weekend when the children are not in her care as agreed between the parties, failing agreement from 9am to 5pm.

17. Each party shall have liberal communication with the children when they are not in their care.

18. On the children’s birthday they shall spend time with the party they are not in the care of as agreed, otherwise as follows:

    (a)If the birthdays fall on a school day, from after school for 2 hours;

    (b)If the birthdays fall on a weekend 4 hours as agreed between the parties.

19. If the children are not in the care of either party on the parties birthday the children shall spend time as agreed, otherwise as follows:

    (a)If the birthdays fall on a school day, from after school for 2 hours;

    (b)If the birthdays fall on a weekend 4 hours as agreed between the parties.

20. That each parent is hereby restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children and both the parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.

AND THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5136 of 2018

MS CORONA

Applicant

And

MR CORONA

Respondent

REASONS FOR JUDGMENT

1. This is an oral decision in respect of an application in a case heard before me last Friday, 15 March 2019.  The short background to the overall matter is that the husband is 53 years old, the wife is 46 years old, and there are two children of the marriage, girls who are 12 and 13 ½. 

2. The parties commenced cohabitation in 1999, married on … 2002, and separated (noting there is some dispute about the date) in 2017.  They remained living under the same roof until late last year when they finally separated their residences.  We are dealing with an 18 year relationship, a 15 year marriage, and circumstances where there are two teenage children.

3. The parties have made various competing accusations of family violence at different levels, and the mother has also raised the father’s alcohol use as an issue.  The father concedes that he has an alcohol problem at some level, which is supported by the fact that he says that he is seeking help for that problem.  He does not indicate what assistance he is seeking, but I note that he has had a conviction for driving with a prescribed concentration of alcohol, which has impaired his ability to drive.

4. The parties seemed to be able to successfully cohabit under the one roof whilst separated for a period of time, but somewhat unsurprisingly there was increasing antagonism between the parties whilst living under the one roof, and ultimately the wife has left the former matrimonial home.

5. Given that this is an interim application, and I note the fact finding restrictions placed upon the court, it is not feasible nor appropriate to seek to make any findings about the circumstances of the alleged family violence, or the circumstances in which the wife left the home. 

6. Obviously the fact that one cannot make findings does not mean the court should ignore that evidence, but for the purposes of the present proceedings I will not make findings about family violence as I do not believe I can safely do so, particularly given the competing allegations and the fact that many of the recent events, without downplaying in any way what has occurred as family violence is always completely unacceptable, seem to reflect the breaking down of the relationship whilst the parties were living under the one roof.

7. The wife / mother commenced these proceedings by initiating application filed on 13 August 2018, and the husband / father filed his response on 2 October.  The matter that has come before the court is the wife’s urgent application in a case filed on 12 March 2019.  In that application the wife seeks both interim property and interim parenting orders. 

8. In respect of property, which I will deal with first, the wife seeks the sole and exclusive use and occupation of the former matrimonial home at Property A (“the former matrimonial home”).  She seeks orders that she have that from 25 March.  The consequential order sought is that the husband vacate the property before then.

9. She seeks spousal maintenance of $300 per week with consequential orders about how that be paid.  She also seeks, within 28 days, the payment of a sum of $150,000 which is said to be categorised by way of interim property settlement, to be included in the parties’ balance sheet at final hearing.

10. In respect of parenting, she seeks orders that both children live with the mother and spend time with the father on the following basis, which is to say, for each alternate Friday to before school the following Monday, which is three nights, and from each alternate Wednesday from after school until 6.30 pm, and then also for half the school holidays in a block.  She seeks changeovers with the father to collect the children from school, and return the children either to school or to the mother’s residence. 

11. The first thing I will say about the orders that the mother seeks in respect of parenting is that, whilst both parties have made allegations of historical violence, and whilst the mother raises issues about the father’s alcohol consumption, which do trouble me somewhat, and whilst it appears that there was a very tumultuous period prior to the mother leaving the former matrimonial home, each party proposes orders that the children spend substantial and significant unsupervised time with the other party.  This is not a case in which either party says that the children should spend either no time or only supervised time with the other party. 

12. So whilst I again emphasise that family violence is entirely unacceptable, it appears that the conflict has been between the parents, that the risk to the children, in simple terms, arises when the parents are together and in conflict.  So again, I will make no findings about family violence other than to say that each party, despite the acrimonious nature of their relationship at present, seems content that the children, fortunately, are safe in the other party’s presence.

13. The husband, by his response to an application in a case filed on 14 March 2019, in respect first of property, sought the counter-order that he have sole and exclusive use and occupation of the former matrimonial home.  I take from that the fact that the parties seem to be in agreement, as I think the evidence shows they must, that it is common ground that it would be inappropriate to make orders that would require, or be based upon the assumption, that the parties should or can cohabit together in the former matrimonial home.   The way the case has been argued is that it is a question of which party should stay and which party should leave.

14. In his response the husband seeks an order related to that sole use and occupation, that he be responsible for all statutory rates and charges, utilities, insurances, outgoings and expenses in relation to the property, and keep the wife indemnified in respect of all liabilities.

15. The parties, as I will refer to in a more detail later, also have an investment property, which I will refer to as the Property B property.  The wife has been using that property to live in to some extent whilst also “couch surfing” since she left the matrimonial home.  It’s otherwise a property which is used for letting, including short-term letting.  The wife hasn’t suggested that she would wish to stay there, given its location, if she can’t have the former matrimonial home, and the husband seeks the sole occupation of that property for the purposes of it being used for rental, and on condition that all rental income received by him in relation to that property be deposited to the mortgage against that property, and consequential orders that the wife be restrained from interfering with the agency agreement.

16. In respect of the maintenance application, the husband says that the wife’s application for spousal maintenance should be dismissed.  He says that she can support herself.  I will go to that in more detail later.

17. In respect of the $150,000 she seeks by way of interim property settlement, or partial property settlement, the husband says that the appropriate sum is $80,000.  It is good to see that the husband has taken what I consider in that respect to be the reasonable position of making a significant and bona fide offer on this issue, although I will consider in more detail whether that is a sufficient offer.

18. In respect of parenting, the mother’s application was silent on equal shared parental responsibility.  The father seeks equal shared parental responsibility.  He seeks that the children live with the parties on a week-about basis, and then also seeks orders in respect of; holidays, Father’s Day, Mother’s Day, Easter and consequential orders.  He also seeks a Court Family Report, although I don’t see why the State would pay for a family report when there are $4.9 million of net assets available.

19. Dealing then with the question of the applications that are made, I note that the parties’ financial positions are set out, partly, in the affidavits, but, principally, in their financial statements.  The wife, in her financial statement, says that she has $32,000 of superannuation and at the moment a total average weekly income of $480.  Apart from that it appears that all of the family’s assets are in the husband’s name, this having been what one might call a traditional relationship where the husband was working, and whilst the wife was doing some work, the assets seem to have come into his name.  

20. She says that she has $327 in a building society bank account and a credit card debt of about $7,000.  She says her weekly outgoings are in the range of $1,100 with about $535 for her and the rest for the children.  The husband, on the other hand, has a total weekly income of approximately $4,150 per week.  He has gross assets of about $5.3million with liabilities by way of a mortgage of about $400,000.  So in addition to his $200,000 per year gross income, he has assets of $4.9 million.

21. I note that there is no balance sheet as such.  However, in aide-memoire 2 which was the respondent’s written submissions a draft balance sheet was included and counsel for the wife agreed that, for the purposes of these interim proceedings only and noting that we only need to deal with general propositions at the moment, that is adequate for me to rely upon. 

22. Basically, the assets of the husband in his name are the family home, which is estimated to be worth $2.2 million, the Property B investment property at $550,000, and a 25 per cent interest in a major property at Suburb C which was valued at $1.6 million, that represents the husband’s share of the assets left by his father.

23. There was another asset left to him by his father, which was realised and from which he had $200,000 which has formed part of his pool. 

24. He has bank accounts of about $94,500 cash and he has a … investment account which is reasonably liquid, subject to taxation liabilities that will come about. 

25. So I'm satisfied that, in addition to having real property assets of something in the rage of $4 million plus, the husband has access to liquid assets of almost $300,000 subject to the fact that there may be a tax liability incurred upon those if liquidated which would need to dealt with.  That’s in addition to more than $650,000 in superannuation which the husband has, all of which comes to just over $4.9 million of net assets. 

26. Now, it’s a long marriage with two children.  I understand that one of the issues is going to be the fact that something like $1.8 million of the $4.9 million represents the husband’s inheritance from his father’s estate in 2007 and that’s going to be said to have had an impact upon what the appropriate final property distribution is.  But the counsel for the husband submitted, fairly in this context, that the husband’s position is that the wife will ultimately receive something in the vicinity of $1.5 million of the $4.9 million.

27. Now, I didn’t ask what the wife’s position was because all I needed to know, for the purpose of the current question, was what the husband says the minimum sum the wife will receive is.  Obviously, in a case where there are substantial assets it’s much easier for the court.  There was no application made at this time to have that partial property distribution of $1.5 million made, noting that it’s, in effect, agreed to at least that level, so the parties could then dispute the rest of the sum, so I will not deal with that at this time, there being no application before me.  But, obviously, where the husband says that $1.5 million of the $4.9 million of net assets in his name will, ultimately, go to the wife, the court has quite a bit of latitude about making orders in respect of partial property payments.

28. There will, of course, need to be some consideration given to categorisation and how matters should be dealt with and there is an issue of whether that should be done now or later.  I think it’s most appropriate to deal with that now.  In respect of his income, although it is substantial, the husband says, nevertheless, that his personal expenditure exceeds his income by about $700 a week.  His income includes the holiday rental for Property B, but from that income he has to pay tax of about almost $800 per week.  There are also various rates and levies.  There’s the mortgage payment on Property B of about $650 a week.  He has death and disability income insurance, which is expensive, but for a man with teenage dependents important, as well as other insurances, including health insurance.  There is $47 per week for his motor vehicle, credit card payments and other matters.  The other matters do include payment for the children’s private school fees, which are not insignificant. 

29. I note part N of the husband’s financial statement, as is often the case, does include some items of expense which one wonders about, including; why there are house repairs of $190 per week or $9,000 roughly per year of which $120 per week is said to relate to the benefit of the children.  But, in any event, he seems to be spending his income.

30. However, it was accepted for the husband that, given the significant net assets he has and the significant liquid assets he has, even though he’s spending all of his income, that, itself, is no real impediment to what is being sought by the wife, given, as I’ve said, the very reasonable concession that was made today that she will probably receive at least $1.5 million of the net assets in due course. 

1. In respect of the wife’s income, the husband says that is understated.  She says that she’s earning $480 a week.  The husband says that she, on average, performs some kind of customer service role.  He says that she does it about 10 times a week at the former matrimonial home at $150 per client, therefore earning $1,500 per.   The husband pointed to the fact that the wife bears the evidentiary onus of proving her income and that she has provided no documents.

2. In respect of that, it is true the wife bears the evidentiary onus, but when one considers s.140 of the Evidence Act (Cth) and the factors to be taken into account, one looks at all of the circumstances and I think I can take into account the fact that she is not in the matrimonial home any more, and that if one had a business where people were coming to the matrimonial home and all of a sudden you are not living there and they do not know where to go to, and you are couch-surfing, it is difficult to see how you could continue to run the business. It would be extremely difficult.

3. Now, she says she has taken her equipment and moved it to another premises, but let us assume that she is able to rebuild to 10 clients – one would think that would take some time, just as a matter of common sense and business practice – she also now has got expenses of renting another premises, so even if she had the 10 clients, if she is paying $400 a week there, that is going to be down to $1,100 a week and it would not surprise me at the moment, given that, as she said in her affidavit, she has been moving between a hotel, a neighbour’s friend, a neighbour’s house – as noted in paragraph 9 of her affidavit – up to Property B, it surprises me she is able to run the business at all.

4. Now, that does not mean she will not be able to re-establish the business, but the suggestion that I would be satisfied she is understating her income at this stage is not one that I accept.  I know that the husband says that this is a cash business, which may mean there are no documents. 

5. Obviously, it is a forensic matter for both of the parties to consider how they will address that question, because if the wife has been running a cash business and if, per chance, she has not been making her appropriate contribution to the Revenue to ensure that services such as this Court are able to be provided to other citizens – particularly in the context of the significant wealth this family has – and if that money has been wrongfully retained for the benefit of the entire family, then both of the parties may face the consequences of that decision.  But as I say, I don't know about that, and that is a matter for the parties to consider how they will deal with it in due course. 

6. Nevertheless, at the moment, I have no doubt that the wife’s income would be significantly reduced.  

7. I will deal first with the question of sole use and occupation.  As I have said, both parties agree they cannot live under the one roof; I accept that.  The wife’s case, in her initiating application, and ultimately her case is that the property should be sold.

8. The husband’s case is that he brought the property to the relationship, he wants to retain it, and given the income he has and the net assets, he has a very good prospect of retaining it.  I accept that that is probably true. 

9. In these circumstances, so long as the condition is met that the wife can be adequately housed in appropriate conditions for her benefit and for the benefit of the children, it does seem appropriate to me that, balancing the various competing interests, that the husband should, therefore, have the sole use and occupation of the former matrimonial home.

10. I should say that I make these orders on condition that the orders I am about to make in respect of maintenance and partial property payment are met, so that if the husband fails to meet the orders in respect of spousal maintenance and in respect of interim property distribution, then I would propose to reverse the order and the wife would be given sole use and occupation of the matrimonial home for her benefit and for the benefit of the children, since she has no other means, noting that she has negative $300 in cash, a maxed out credit card and two children and he has four million-plus dollars at his disposal.

11. In respect of Property B, since the wife does not want to live there, I think it is appropriate to make a similar order.  In respect of Property B, I think that orders 11 and 12 that he seeks and 13 of the response are appropriate.  The husband can have sole use and occupation of that rental property so long as all of the rental incomes are used to pay down the mortgage on that property. 

12. I was not addressed on this but I will just flag now that one of the issues that I was not addressed on was the question of whether there should be a restraint placed upon the husband of further encumbering any of these properties without the consent of the wife or an order of the Court and I will hear the parties quickly at the end on that question or maybe that is something that the parties can come to an agreement about.

13. I note that last Friday when the matter was before me – noting that the wife has virtually no money and only $1,000 or $2,000 left on her credit card – the Court asked if there was any reason, given the net assets and liquid assets available, why the husband should not forthwith pay her $10,000 and the husband agreed that that would be appropriate. 

14. As I was told that there would be no difficulty paying $10,000, upon the husband’s consent, I made an order pursuant to section 77 that $10,000 be paid forthwith. I am told today that only $1,000 has been paid and that there is some kind of offer on the table.

15. Prima facie, that appears to me to be a clear contravention of my order, but there is no contravention application before me and I will not seek to deal with such an important matter when the matter has not been argued before me.  I certainly did not order $10,000 to be paid so that the husband could haggle about it. 

16. I think it is important to note that, although I did not say so at the time, since I had not had a full opportunity to read all the material that was provided to me, I had in mind that that order was being made pursuant to s.77 of the Act.

17. If that payment has not been made by 4 pm on this Wednesday, I give the wife leave to relist the matter by approaching my chambers.  I will relist the matter immediately to consider what should occur at that time, noting that the husband has, as I said, something like $300,000 in liquid assets and $4.9 million worth of net assets. 

18. Now, I had in mind that the $10,000 which I ordered paid last Friday would cover her credit card. I consider the appropriate order, noting that the husband has been granted sole use and occupation of the premises on the condition that the wife is able to be put in a position where there is justice done between the parties, is to order an additional $10,000 of urgent spouse maintenance pursuant to s.77 to also be paid by 4 pm this Wednesday, noting that given what I was told on Friday by counsel for the father and the evidence of the father, I can, for the moment, think of absolutely no valid reason why that transfer could not be organised by approaching a bank within a matter of less than an hour.

19. That $10,000 will form a lump sum spouse maintenance payment, which I will categorise as such.  That $20,000 will allow the wife to pay off her $7,000 credit card debt, which will give her access to the credit card and give her $10,000 for her immediate needs.

20. It brings me, then, to two other questions. Firstly, the question of ongoing spouse maintenance. I’m satisfied that the evidence establishes that the wife comfortably reaches the criteria of s.72, and she clearly has an urgent need, and the husband clearly has an overwhelming capacity to meet payments for spouse payments.

21. Obviously, the wife does have a capacity to work, and her evidence is that she is seeking to rebuild her business so that she will have an income which may be in the range of $1,000 a week.  But it’s hard to know how that business will be rebuilt, and businesses which have been broken down by having to move may take some time to get themselves started again. 

22. She needs to house herself.  My preliminary thought was that the wife should have the former matrimonial home with the children, but given that her needs can be met otherwise as noted above it seems appropriate to allow the husband to have it since he says he wants to and is able to retain it. 

23. The wife sought $300 per week spouse maintenance but that was, of course, on the basis that she would have the sole use and occupation of the former matrimonial home, and her housing needs would be taken care of, and the $300 she sought was for additional and other costs and expenses. 

24. Sydney property is expensive.  There’s no evidence before me about what her reasonable needs may be.  I think I need to be cautious, and I think I can, noting that I’m also going to make an interim property distribution order, but I think if one was to allow an additional $700 per week for the housing in Sydney that’s probably a significant underestimate, but she does have the potential to earn more, plus the $300 for other expenses she sought.

25. On that basis I will order that spousal maintenance be paid at $1,000 per week commencing from a payment this Friday, 22 March, and continuing until further court order.  As I’ve said, I categorise that as spousal maintenance for the reasons I’ve given. 

26. I will order the wife’s proposed order 7 that such sum shall be deposited directly to the wife’s bank account, BSB Number …, Account Number …, each Friday going forward. 

27. Now, that brings us to the final question of what is the appropriate interim property order to make.  There was some argument which arose during the course of the submissions about the categorisation of the lump sum, but both parties have pleaded the lump sum sought or to be paid as an interim property settlement or part payment, as the wife says to be included on the balance sheet. 

28. I think that is appropriate.  Where the husband says she will get at least $1.5 million, she says, well, 10 per cent being $150,000 of that is not inappropriate at the moment.  The husband, effectively, is saying approximately five per cent being $80,000 should be paid given that he has the capacity to pay that out of liquid assets and also given that he will ultimately need to either refinance significantly or sell assets.  One suspects he will have to sell assets. 

29. However, I don’t want to place the husband in the position of having to move into some kind of fire sale of assets or not be able to meet the maintenance payments, or otherwise the payments which he again very reasonably makes noting that he voluntarily pays the children’s school fees and other activity fees. 

30. So it seems to me appropriate that I should make an order for interim property settlement of $150,000. 

31. The wife didn’t suggest that if she gets the immediate lump sum spouse maintenance, being the first $10,000 and the further $10,000 which I’ve just ordered, that she would then need, noting she is also to get period spousal maintenance, the $150,000 immediately.

32. I don’t want to draw it out too much, so I will order that it can be made by way of three payments.  The first payment of $50,000 to be made by 18 April, the second payment to be made by 18 May and the third payment of $50,000 to be made by 18 June.  That should allow the husband sufficient leeway to organise his financial affairs without causing him difficulty. 

33. I also note his undertaking that he will continue to make the payments which he indicated to the court that he was making, and it should be taken into account being the children’s school fees and activity fees. 

34. The husband’s proposed orders are already taken into account, ensuring and taking care of other matters for Property B as well.  That deals with the property question. 

35. The parties went to a child inclusive conference.  As I said, although there’s a great deal of antagonism between the parties much of what has occurred appears to be situational. 

36. Neither party suggests that the children shouldn’t spend time with the other party.  It’s just a question of the time which is appropriate.  In the Child Inclusive Memorandum the question of family violence was given some weight by Ms D as was potential alcohol issues with the father, but I’m comfortably satisfied that the children are not at any risk in his care. 

37. When the children were asked what they thought should happen, the older child, [X], who is 13 said she thought an equal time arrangement:

    ...would be fair to both her parents. 

38. When children are more interested in what’s good for their parents than for themselves one has to be careful giving great weight to what they say. 

39. The younger girl, [Y], said that:

    She would prefer to spend slightly more time with her mother, possibly a five-nine arrangement.  [Y] said she has a friend who lives in such a parenting arrangement and that this appears to work well. 

40. Obviously, since [Y]’s experience is restricted to what a particular friend has, that can only be given so much weight.  But I do give some weight to her view, which is not uncommon, that she would prefer a primary residence, so to speak.  As I’ve said, although I won’t make any findings about it now, I do have some concerns about the husband’s alcohol consumption. 

41. He has said in his affidavit that he is taking steps to address this (at paragraph 62):

    I have sought help for my alcohol consumption and continue to do so.

42. However, I have no idea what steps he has taken and whether that involves Alcoholics Anonymous or counselling, but it does concern me.

43. There’s a presumption of equal shared responsibility which is arguably rebutted by both sets of allegations of family violence.  I note that the wife in fact has had an AVO taken out against her by the police because of something that occurred.  Given the way the matter was argued before me I think it is appropriate to make, for the present time, an order for equal shared parental responsibility. 

44. There’s an equal time application.  Given the concerns I have about alcohol consumption, and given what the younger child said, and given the time of flux that the children are going through, I think having one primary residence would probably benefit them. 

45. Accordingly, on that basis, although I have considered an equal time arrangement, I consider that is not the most appropriate arrangement at the moment, and that a substantial time situation should occur instead. 

46. On that basis I think that the appropriate order to make is that the children live with the mother, and that they spend each alternate week from Thursday after school until Monday before school living with the father, then the alternate Wednesday after school until Thursday before school with the father.  So that is a five/nine arrangement.  I think that’s a good starting point while we investigate what’s happening. 

47. Each parent is to have liberal communication with the children when not currently in their care.  Neither party is to denigrate the other, and I will make the usual non-denigration orders.

48. I will order equal time during school holidays, since it’s a slightly different situation, so half the block school holidays, and I will just say for the moment, the mother having the first half in odd numbered years and the second half in even numbered years.  The children, if not otherwise with the father, to spend Father’s Day with him.  The children, if not otherwise with the mother, to spend Mother’s Day with her.  The children to spend at least two hours on a week day or four hours on a weekend on their birthday with the parent they are not with, and the same in respect of the parents’ birthdays.  We will deal with Christmas before we get there.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Date: 12 April 2019