GALLIMORE & GALLIMORE

FAMILY COURT OF AUSTRALIA

GALLIMORE & GALLIMORE

[2018] FamCA 249

FAMILY LAW – CHILDREN – Where an order is to be made for equal shared parental responsibility – Where the husband seeks an equal time order which is opposed by the wife – Consideration of the words “must consider” in s 65DAA(1) Family Law Act – Where no order is made for equal time – Consideration of other disputed parenting arrangements

FAMILY LAW – PROPERTY – Where the wife made initial contributions and financial contributions by way of receipt of inheritances – Where the husband argues that arrangements with his father for the husband to acquire an interest in a company represented a contribution by the husband’s father on the husband’s behalf – Where the value of the company has increased significantly since separation – Where the wife receives a 2.5 per cent adjustment based on all contributions – Where there is a significant disparity in the parties’ earning capacity – Where the s 79(4)(d) – (g) considerations favour the wife so that she receives a further 5 per cent adjustment

Family Law Act 1975 (Cth)
Explanatory Memorandum of Family Law Amendment (Shared Parental Responsibility) Bill 2005 at 184

Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case) (1995) 57 FCR 451
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Egan & Egan [2017] FamCA 170
Goode & Goode (2006) FLC 93-286
Khan v Minister for Immigration and Ethnic Affairs (unreported Federal Court of Australia, 11 December 1987)

APPLICANT:

Ms Gallimore

RESPONDENT:

Mr Gallimore

FILE NUMBER:

PAC

2015

DATE DELIVERED:

23 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

6 - 8 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Southern Waters Legal

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Willis & Bowring Solicitors

Orders

Parenting

All previous parenting orders are discharged.
The husband and wife have equal shared parental responsibility for the long term care, welfare and development of the children, B (B) born … 2010, C (C) born … 2011 and D (D) born … 2014 (the children).
The parties are to consult each other in the exercise of their equal shared parental responsibility as follows:
3.1.Each parent will inform the other parent about decisions to be made including, but not limited to: the children’s education (both current and future), the children’s religious and cultural upbringing and the children’s health
3.2.Each parent will consult the other on terms that they agree; and
3.3.Each parent will make a genuine effort to come to a joint decision.
Notwithstanding the provision of order 2, the wife shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with her.
Notwithstanding the provision of order 2, the husband shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with him.
The children live with the wife unless otherwise specified in these orders.
Until D attains the age of 5 on 25 January 2019, the children spend time with the husband in a two-weekly cycle as follows:
7.1.In week 1 from 5pm Friday until 5pm Monday.
7.2.In week 2 from Monday after school or pre-school until 5pm.
Upon D attaining the age of 5 on 25 January 2019 and thereafter, the children spend time with the husband in a two-weekly cycle as follows:
8.1.In week 1 from 5pm Friday until 5pm Monday.
8.2.In week 2 from Monday after school or pre-school until the commencement of school or preschool on Tuesday.
The children will spend the following additional time with the wife if the children are not already spending with the wife on that day:
The Children's Birthday
9.1.On B's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s birthday until the commencement of school or 10am the day of her birthday.
9.2.On C's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s birthday until the commencement of school or 10am the day of her birthday.
9.3.On D’s birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.
Wife’s Birthday
9.4.On the wife’s birthday from after school or 3pm the day immediately prior to the wife’s birthday to 5.30pm the day of the wife’s birthday.
Mother’s Day
9.5.Where Mother’s Day does not fall on a weekend the wife is spending time with the children, then for that weekend the children spend time with the wife from 5pm the day immediately prior to Mother’s Day until 5pm on Mother’s Day.
Christmas Time
9.6.Commencing 2018, from 9am on Christmas Eve until 3pm on Christmas Day and thereafter in each even numbered year.
9.7.Commencing 2019, from 3pm on Christmas Day until 5pm Boxing Day and thereafter in each odd numbered year.
Easter Time
9.8.Commencing in 2020, from 9am Good Friday to 5pm Easter Monday and continuing thereafter in each even numbered year.
Holiday Time
9.9.Upon the commencement of order 10.10 and subject to the orders about “Christmas Time”, the wife shall be at liberty to elect a 14 day block period to enable her to travel with the children provided that she makes such election and provides the husband with written notice of such election no less than 6 weeks prior to the elected block but otherwise the children shall spend time with their father during Christmas school holidays totalling the time specified in order 10.10.
The children will spend the following additional time with the husband if the children are not already spending with the husband on that day:
The Children's Birthday
10.1.On B's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s birthday until the commencement of school or 10am the day of her birthday.
10.2.On C's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s birthday until the commencement of school or 10am the day of her birthday.
10.3.On D’s birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.
Husband’s Birthday
10.4.From 9am on the husband’s birthday to the commencement of school or 9am the morning following the husband’s birthday.
Father’s Day
10.5.Where Father’s Day does not fall on a weekend the husband is spending time with the children, then for that weekend the children spend time with the husband from 9am on Father’s Day to the commencement of school or 9am the day following Father’s Day.
Christmas Time
10.6.Commencing 2018, from 3pm on Christmas Day until 5pm on Boxing Day and thereafter in each even numbered year.
10.7.Commencing 2019 from 9am on Christmas Eve until 3pm on Christmas Day each alternate year and thereafter in each odd numbered year.
Easter
10.8.Commencing in 2019 from 9am Good Friday to 5pm Easter Monday continuing thereafter in each odd numbered year.
School holidays
10.9.In all mid-year school holiday periods as follows:
10.9.1.Commencing in 2018 the husband shall have five days in the first week of the Term 2 school holidays and failing agreement from 4pm Friday to 4pm Wednesday (provided that that does not fall on Easter weekend in which circumstances the time is to be spent in the other week of the school holidays)
10.9.2.In Term 3 2018 and Term 1 2019 the children will spend time with their father for a six day block period as agreed between the parties and failing agreement in the first week from 4pm Friday to 4pm Thursday.
10.9.3.Commencing in second term 2019 and continuing thereafter, for one half of the school holiday periods at times to be agreed between the parties and failing agreement for the first week in all odd numbered years and the second week in all even numbered years.
Christmas time
10.10.In the 2018/2019 and the 2019/2020 Christmas school holidays the children spend three, six night block periods with their father such that his time pursuant to the term arrangements in orders 7 and 8 is extended to facilitate a six night block.
10.11.From 2020/2021, the time gazetted by the NSW Department of Education (or other such name as it may subsequently be known) for Christmas school holidays to be divided equally between the parties by way of agreement and failing agreement, in each even year for the first half and in each odd year for the second half of the holiday period, subject to the orders in relation to “Christmas Time” and the provisions in order 8 are suspended during the Christmas school holidays.

Changeovers

In the event that changeovers do not take place at school, the party who has the children shall deliver them to the other parent at the time of changeover.

Electronic Communication

The wife and husband have reasonable communication, including face time and telephone with the children at all times when the children are spending time with the other parent as agreed and failing agreement between 6.00pm- 7.00pm each evening. The husband shall provide an iPad for each household to facilitate FaceTime calls.
Neither party will unreasonably prevent the children from telephoning the other parent.

Change of Health

Each parent is to notify the other as expeditiously as possible and not more than 24 hours after the event occurring, of any matters relating to the health or wellbeing of the children (save for common coughs and colds), which require the attention of a medical practitioner or health professional with both parents acknowledging that they each have an equal right to participate in the decisions on the appropriate treatment to be administered to the children.
The husband and wife contact the school and or day care to ensure they receive a copy of school reports, photographs and newsletters with such costs to be borne by each parent individually.
The husband and wife be entitled to discuss the children's educational progress with the children's teacher and both parents be at liberty to attend parent teacher interviews and any other activity at the school/s that the children would ordinarily attend.
These orders authorise any doctor, hospital and/or health professional to provide to the Wife and/or Husband any information concerning the health of the children
Each parent will ensure that when the children spend time with that parent that they attend with any clothing, books or school paper which they require for school or extra-curricular activities.
The husband and wife agree that they will ensure that the children attend all extra-curricular activities inclusive of any sports event of which the children may be enrolled. The wife and husband need to agree and jointly consent to the enrolment of the child in any extra-curricular activities.
Each parent will ensure that the items that were sent with the children at the changeover are returned at the conclusion of the time that the children are spending with that parent.
Each party is to advise the other of their current address, telephone number and each nominated email address.
The wife is to inform the husband and the husband is to inform the wife within three (3) days of either party moving residence, the address of that residence and the respective contact telephone numbers in the event of change.

Conduct

Neither party denigrate the other party or any other future partner, family members or friends whilst in the presence or hearing of the children or allow, with their knowledge, a third party to do so.
Each party will encourage, and not undermine, the children's relationship with the other party.

Notice

In the event that either the husband or the wife are unable to spend time with the children for a period of in excess of 12 hours due to work or personal commitments, he or she will provide reasonable notice in writing to the other parent of their inability to spend such time with the children.

Passports

Within 28 days from the date of these orders the wife shall provide to the husband applications for Australian passports for each of the children and the husband shall, within 7 days of receipt of the applications, sign and return the applications to the wife to allow the wife to seek the issue of passports for each of the children.
Thereafter the parties shall do all acts and things and sign all documents as shall be necessary to ensure that the children have a valid Australian passport at all times and pay the costs of such passport in equal shares.
The children’s passports shall be retained and held by the wife and shall be provided to the husband by agreement between the parties and subject to order 30.

Travel

The wife and husband shall be permitted to remove the children from the Commonwealth of Australia, provided that:
29.1.the travelling parent shall provide the other parent with 6 weeks’ notice of their intention to travel with the children; and
29.2.the travelling parent shall provide the other parent with a full itinerary of their proposed travel including details of the mode of transportation, return flights/tickets (including flight numbers), transfer, accommodation and contact details for the children not less than 28 days prior to departure; and
29.3.within 5 days of receiving the information as provided for in order 29.2 the non-travelling parent shall provide the travelling parent with written notice of their consent for the children to travel and such consent cannot be unreasonably withheld; and
29.4.the travelling party shall be responsible for the payment of the children’s flights and accommodation during the time they are travelling with them; and
29.5.such trip shall not interfere with the non-travelling parent’s time with the children in accordance with these orders and shall occur in the times the parties spend with the children in the school holiday unless it is otherwise agreed between the parties in writing; and
29.6.Neither party will travel overseas with the children until D turns 6 save an except for travelling to New Zealand; and
29.7.Upon D turning 6, and until he turns 8, neither party will travel overseas for more than 7 days.
The wife shall hold the children’s passports from time to time and make the children’s passports available to the husband upon his compliance with order 29 should he elect to travel with the children and the husband shall return the children’s passports to the wife within 7 days of the children returning.

PROPERTY ORDERS

An order be made pursuant to section 79 of the Family Law Act 1975 in terms of paragraphs 32-41 below.
Within 8 weeks from the date of this order, the husband cause to be paid to the wife of sum $186,622.
Within 8 weeks from the date of this order, the wife transfer to the husband the monies in E Credit Union account …52 in the approximate sum of $290,511.
Within 8 weeks from the date of this order, the husband shall do all acts and sign all documents necessary to transfer to the wife all his right, title and interest in the property situated at and known as F Street, Suburb G, New South Wales being the whole of the land described in folio identifier … (“the Suburb G property”) on the following terms and conditions:
34.1.The husband deliver to the wife a signed transfer in registrable form; and
34.2.The husband sign all documents and do all things necessary to discharge the mortgage to Commonwealth Bank of Australia (…71).
Within 8 weeks from the date of this order, the husband shall do all acts and sign all documents necessary to transfer to the wife all his right, title and interest in the property situated, at and known as, H Street, Suburb J, New South Wales, being the whole of the land described in folio identifier … (“the Suburb J property”) on the following terms and conditions:
35.1.The husband deliver to the wife a signed transfer in registrable form; and
35.2.The husband sign all documents and do all things necessary to discharge the mortgage to K Bank (…90).
The husband retain to the exclusion of the wife the entity known as “L Pty Ltd” ACN … and the wife is hereby declared to have no legal or equitable interest in that entity.
The husband indemnify and keep indemnified against any current or future liability the wife in respect of any creditors of L Pty Ltd including but not limited to the debt due and payable to the Australian Taxation Office and the husband shall do all things and sign all necessary documents to give effect to this indemnity.
The wife relinquish any right, title or interest she may hold in the 1/6 interest held by the husband in the boat.
The husband as the Director of L Pty Ltd, within 8 weeks from the date of these orders, take all steps and do all things as necessary and sign all such documents as to transfer to the wife the motor vehicle currently registered in the name of L Pty Ltd and driven by the wife into her sole name and thereafter the wife is to assume responsibility for all payments and expenses associated with that motor vehicle.
Within 8 weeks from the date of this order, the parties sign all such documentation required by E Credit Union to cause the joint bank account currently held between them being account number …49 to be closed and any funds remaining in that bank account be paid to the wife.
Other than as provided for in this order, the wife and husband be declared to be and have the sole right, title and beneficial interest and ownership in:
41.1.Any chattels, goods, jewellery, furnishings, and other types of property which are at the date of these orders in their respective possession.
41.2.Any monies, share portfolios, debentures, superannuation entitlements, motor vehicles and any other assets which stand in their sole name respectively as at the date of these orders.
41.3.Unless otherwise specifically referred to in this order that each party shall indemnify and keep the other indemnified with respect of any liabilities, loan or personal debts to which either of them are respectfully obligated by reason of the operation of law or is associated with any asset they retain.

Spousal Maintenance

The order for spousal maintenance dated 16 March 2016 be discharged.

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 Gallimore & Gallimore 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: PAC 11 of 2015

Ms Gallimore

Applicant

And

Mr Gallimore

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

During the days of this hearing a number of issues became the subject of agreement between the parties. They ultimately agreed about the majority of the final parenting orders to be made.
What remained outstanding was the core dispute as to whether or not the children graduated to spending equal time with both parents. The parties also remained apart on how much time the children would spend with their father during school holidays; how quickly the time with their father both during school term and school holidays would increase and the operation of changeovers.

Both parties also each sought quite different property settlement orders. Contentious valuation issues were resolved during the course of the hearing and ultimately the parties settled on an agreed balance sheet.
During the marriage the husband, assisted by the wife while they were together, developed a successful company which has had a significant growth since it was established.
The other major assets are the former matrimonial home and investment property.
Because the parties have taken money from the family company the effect of Division 7A loans needed to be considered.

APPLICATIONS

The orders in respect to which the parties agreed are the subject of minutes of order dated 8 March 2018, signed by the parties and set out in Schedule 1 (Exhibit 28).
The parenting orders which the wife is seeking are set out in Schedule 2.
The parenting orders which the husband is seeking are set out in Schedule 3. The husband also seeks to retain the existing arrangements in relation to changeover when changeover does not take place at school. Those arrangements currently are that the parent who is to have time with the children travels to pick the children up from the other parent. The wife wants that arrangement reversed.
The property settlement orders which the wife is seeking are set out in Schedule 4.
The property settlement order sought by the husband prior to final submissions is set out in Schedule 5.
During final submissions it was agreed that an order be made that the wife transfer to the husband the monies in the E Credit Union Account …52 in the sum of approximately $290, 811. The husband did not seek that the wife pay him any further sum of money. It was also agreed that the husband be responsible for the discharge of the mortgage on the Suburb J property.
The parties agreed that the spousal maintenance order made on 16 March 2016 in the wife’s favour in the sum of $300 per week be discharged.

DOCUMENTS RELIED UPON

The documents upon which the wife relies include:
14.1.Affidavit of Ms Gallimore, filed 23 August 2017; and
14.2.Financial statement of Ms Gallimore, filed 23 August 2017.
The documents upon which the husband relies include:
15.1.Further amended response, filed 27 February 2018;
15.2.Affidavit of Mr Gallimore, filed 18 August 2017;
15.3.Financial statement of Mr Gallimore, filed 27 February 2018;
15.4.Financial questionnaire of the husband, filed 9 February 2017;
15.5.Affidavit of Ms M, filed 18 August 2017;
15.6.Affidavit of Mr N, filed 18 August 2017; and
15.7.Affidavit of Mr O Gallimore, filed 18 August 2017.
Both parties relied upon the following expert reports:
16.1.Single Expert Report of Dr P (“Dr P”), prepared in relation to parenting issues, dated 18 August 2017;
16.2.Valuation report about L Pty Ltd (“LPL”) by Ms Q, dated 30 November 2015;
16.3.Ms Q’s response to questions, dated 20 February 2018.
16.4.Joint valuation report about LPL by Ms Q and Mr R, dated 14 April 2017;
16.5.Retrospective valuation about LPL report by Ms Q, dated 1 March 2018; and
16.6.Valuation report about LPL by Ms Q, dated 8 March 2018.

SHORT HISTORY

The wife was born in 1978.
The husband was born in 1981.
The parties commenced cohabitation in 2001.
The parties married in 2006.
The parties’ first child, B was born in 2010.
The parties’ second child, C was born in 2011.
The parties’ third child, D was born in 2014.
The parties separated on a final basis in April 2015.

CREDIT

Neither counsel for the parties made a submission that generally impugned the credit of the other party.
On the question of whether an equal time arrangement would work, I had the advantage of seeing and hearing how the parties answered questions relevant to that consideration.
In the discussions below, on particular matters, I have accepted one parties’ version over the others, for reasons stated.

DETAILED CHRONOLOGY

The wife was born in 1978.
The husband was born in 1981.
The parties commenced a personal relationship in 2000 and commenced cohabitation in 2001.
In April 2001 the wife sold her property at Suburb S, receiving a net amount of $22,466 and placed those funds in an account in her name.
On 25 July 2001 the parties purchased a property at T Street, Suburb U. The wife contributed $10,275 by way of deposit. There is a lack of clarity about whether the balance of the proceeds from Suburb S went directly to the acquisition of the Suburb U property but no issue that the wife brought these funds into the relationship and used them for joint purposes.
Around 2002 or 2003 the parties sold the Suburb U property, receiving a net amount of approximately $100,000 in proceeds. The parties then purchased the property at V Street, Suburb W for approximately $450,000 from the husband’s father and step-mother. They borrowed $350,000 to complete this purchase.
In January 2003 the wife’s mother passed away.
In 2004 the wife commenced working for X Limited earning approximately $40,000 per annum.
In September 2004 the wife’s father passed away and the wife was a beneficiary to the late father’s estate.
On 24 August 2005 the wife received her first inheritance payment of $110,000.
On 14 October 2005 the wife paid the $110,000 inheritance to reduce the parties’ mortgage.
In 2006 the wife received a promotion at X Limited and was earning an income of approximately $100,000 per annum.
In April or May 2006 the parties purchased H Street, Suburb J for approximately $353,000 as an investment property. A tenant was immediately acquired for the property and has remained since.
In 31 August 2006 the wife received her second inheritance payment of $10,104.62.
The parties married in 2006.
In late 2008 the husband’s father, the husband and the wife had discussions about starting LPL together.
From late 2008 until the birth of B in 2010 the wife was working full time at X Limited, while also assisting LPL.
In December 2008 both the parties and the husband’s father each contributed $100,000 by way of seed capital to LPL. The company repaid these loans within three to six months.
The parties’ first child, B was born in 2010 and is currently aged eight.
From the birth of B, until the time of separation, the wife continued to work for LPL once a week on an unpaid part-time basis.
In the first half of 2010, the sum of $20,000 was transferred from LPL’s bank account to the husband’s father and his wife.
On 23 June 2010 the husband’s father ceased to be Director and Secretary of LPL, leaving the husband as sole director and shareholder.
On 23 November 2010 the husband’s father transferred his shares in LPL to the husband.
The parties’ second child, C was born in 2011.
In August 2012 the parties sold the then unencumbered Suburb W property for approximately $600,000. The parties purchased Y Street, Suburb Z for approximately $1,200,000. The parties used the proceeds of sale from Suburb W, borrowed $450,000 and completed the sale using savings.
In late 2012, when C was 1 year old, the mother returned to work for 2 days a week while continuing to assist in the administration of LPL. The wife continued to work until shortly before D is born in 2014.
In December 2013 the Suburb Z property was sold for $1,275,000 and the parties received net sales proceeds of approximately $800,000 (according to the wife) or $1,024,000 (according to the husband). The parties subsequently purchased the former matrimonial home at F Street, Suburb G for $1,480,000 using the proceeds of the sale from Suburb Z and a borrowing from AA Bank.
It seems to be agreed (see Exhibit 6) that in December 2013 or January 2014 a significant amount or amounts, in the order of $500,000 or $624,000, were transferred from LPL to an offset account against the mortgage on the Suburb G property.
The husband met his current partner, Ms M, in July 2013. Shortly after they formed an intimate personal relationship during a period when the wife was pregnant with the parties’ third child.
The child D was born in 2014.
The parties separated on 30 July 2014, with the husband moving out of the Suburb G home. The husband obtained rental premises in Suburb BB.
On 14 August 2014 the wife withdrew $400,000 from the cash reserve of $800,000 in LPL and deposited that sum into a savings account in her sole name.
On 25 September 2014 the husband’s solicitors wrote to the wife asking for the $400,000 to be returned.
Between December 2014 and April 2015 the husband represented to the wife that he wished to reconcile with her but the husband continued to see Ms M on and off during this period. Ms M said she and the husband broke up and got back together again about five times in this period. The husband was simultaneously having a relationship with both women during this period.
In April 2015 the parties separated on a final basis.
The wife ceased employment at LPL in April 2015, and commenced to work one day a week with X Limited.
In August 2015 the parties attended mediation and they entered into a parenting plan. B and C began spending overnight time with the husband. The parties attended court on 16 March 2016 and agreed to interim orders for parenting and that the husband pay the wife $300 per week by way of spousal maintenance. D commenced overnight time with the husband.
On 10 June 2016 the husband moved into a rental property at Suburb CC with his partner Ms M and her two children, DD and EE. DD has ceased to be a member of their household. EE is a university student.
In January 2017 the children commenced to spend time with the husband each alternate weekend which was when the 2016 Consent Orders provided that would commence.

APPROACH TO PARENTING ISSUES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
In circumstances where the parents are to have equal shared parental responsibility, s 65DAA sets out the requirement to consider equal time or alternatively substantial and significant time.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

It was common ground that the children would benefit from having a meaningful relationship with both of their parents.
Counsel for the husband submitted that the children should eventually be given the benefit of equal time with their father and suggested that was the best way of creating a meaningful relationship with their father. As I discuss below, this submission had some support from Dr P.
Counsel for the wife submits that it would be an error to conflate meaningful relationship with the amount of time spent.
I find that either party’s proposal allows the children the benefit of having a meaningful relationship with both parents.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

Apart from the psychological harm that might be occasioned to the children arising out of the conflict between their parents, this is not a relevant consideration.

The additional considerations

Children’s views (s 60CC(3)(a))

The eldest child told the single expert she would like to spend more time with the husband but likes living with her mother. The middle child, when asked about the living arrangements by the single expert, said she sees more of her mum ‘because she’s my mum’. In relation to time with the husband, she said that she sees her father but the days go quickly with him and that they don’t have much time with their father. The single expert appropriately did not ask D to express his views.
Dr P accepted that to some extent the two elder children expressed a view that points towards them wanting to spend more with their father. He also agreed that the children may not have considered that would mean they would spend less time with their mother.
Dr P expressed the opinion that virtually no weight should be placed upon the children’s views at their current ages and I accept that is so.

Relationships of the children with the parents and other persons (s 60CC(3)(b))

The three children identify the wife as their primary attachment figure and their father as an important attachment figure in their lives ([75] of the expert report).
The children have a loving relationship with both of their parents. The children have a good relationship with Ms M.
The single expert said at [70] of his report that all three children remained in relatively close proximity to the wife during the single expert’s observation of them, returning to seek her comfort or to engage with her.
The children were less interactive with their father than they were with their mother. In fact, the single expert noted that when the children had a minor disagreement it was Ms M who attended to the children rather than the husband.

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

The parties have agreed on an order for equal shared parental responsibility. There are difficulties in communication but no problem has yet arisen in any decision about a long-term issue. The wife has been the primary caregiver and the husband has spent time with the children.
The wife has given evidence about occasions where the husband has chosen not to have extra time with the children and other occasions when he has been unable to exercise time that the parties had agreed the husband could spend with the children. The husband makes some complaint about the wife making the children unavailable. This is discussed below.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

The financial support of the children has been managed thus far by agreement between the parties.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

This is a significant issue on the husband’s proposal and an important issue to consider in this case. The single expert at [82] of his report records that as at the time of writing the report, the youngest child is likely to experience unease and separation anxiety from his mother if he were to spend more than four nights away from her. Dr P expressed the view that an equal time arrangement will be age appropriate by January 2019, when D reaches the age of 5. Inferential Dr P thinks the children will manage the change. Dr P has the hope that by that time the parties’ relationship will have sufficiently improved so that an equal time arrangement will work in the children’s best interests. Currently there is little evidence to support that hope.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e)

The husband did live 1.8kms away. He has moved to now live 11kms away. I discuss the distance that the parties now live apart in the context of considering the husband’s application for equal time. Otherwise, there are no practical difficulties in the children spending time with the parents. There has been an issue in relation to electronic communication between the households which is also discussed below.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The single expert at [20] recorded that the husband appeared to lack understanding of the children’s emotional development and age-appropriate overnight stays. He recorded that the husband had admitted to him that he had not sought any educational or professional advice with regard to parenting plans for children under the age of 5. The husband has not provided any evidence that he has subsequently done so.
In addition, the single expert at [31] recorded that the husband has an “unwillingness to self-examine his role in difficult situations”.
Both parents individually have the capacity to provide for the children’s needs. However, it is the conflict between the parents which leads to significant problems with parental capacity and attitude in this case. I shall further discuss this issue when considering the provisions of s 65DAA(1)(a) and (b) of the Act below.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

In considering the parties’ proposals, I take into account the ages of the children. Dr P’s opined that the husband’s proposal for staged increases of time to equal time were all age appropriate. Counsel for the wife submitted that Dr P’s evidence about what was age appropriate was evidence about what was age appropriate for a general cohort of children. I do not agree. Dr P was clearly expressing opinions about what he thought was age appropriate for these children. That is not to say that I accept Dr P’s evidence that these arrangements are in the children’s best interests.
Dr P expressed the view that B did not present as an overly anxious child (which is how the wife describes B).

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

Not applicable.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

Dr P, at [87] of his report, suggests a “trialling” of the move to equal time. Making an order for a trial would make further proceedings more likely if the parties disagreed about what arrangements should be put in place at the end of that trial period. Neither party suggested I should not make final parenting orders.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.

EQUAL SHARED PARENTAL RESPONSIBILITY

At the request of the parties, I intend to make an order for equal shared parental responsibility.

SECTION 65DAA(1) OF THE ACT

Subsections 65DAA(1) – (5) provide:
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
[emphasis added]

The meaning of the word “consider”

The question was raised during submissions as to the meaning of the word “consider” in s 65DAA(1) and (2).
In Goode & Goode (2006) FLC 93-286, the Full Court, having extensively quoted the discussion about the meaning of the word “consider” in Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case) (1995) 57 FCR 451; said at [64] :
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
The High Court in Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [43], when explaining the meaning of “consider” in s 60CC(1) and “consideration” in s 60CC(3)(a) said that, “The term ‘consider’ imports an obligation to give proper, genuine and realistic consideration”. In doing so, the High Court referenced Khan v Minister for Immigration and Ethnic Affairs (unreported Federal Court of Australia, 11 December 1987) at 11 per Gummow J, in which his Honour relied upon a number of administrative law cases of a genre which the Full Court specifically found not to be entirely apposite to the meaning of the word “consider” in s 65DAA(1) and (2) of the Act.
In Egan & Egan [2017] FamCA 170, for reasons set out at [14] to [29], I formed the view that the reasoning of the Full Court in Goode at [64] did not survive the statement made by the High Court in Bondelmonte at [43] and that there was no reason to conclude that the legislature used the word “consider” in different senses in s 60CC(1) and s 65DAA(1) and (2) of the Act.
Counsel for the wife suggested that that view may not be correct. After brief oral submissions I invited written submissions. Counsel for the wife sent a copy of a case note which she had written entitled “Consider this if you may – Egan [2017] FamCA 170 – Case note”. I mark that document Exhibit 30 .
Counsel for the wife concludes in the case note that:
Ultimately, given the different purpose and structure of sections 60CC(2) and (3) and sections 65DAA(1) and (2) the High Court’s comments in Bondelmonte about the meaning of consider in the context of section 60CC(3) may not extinguish the Full Court’s analysis in Goode of the meaning to be given to “consider” as it appears in section 65DAA.
[emphasis added]
Counsel for the husband provided written submissions which I mark Exhibit 31. Counsel for the husband submits that the court would import the same meaning to the term “consider” or “must consider” whether it appears in s 60CC or s 65DAA and that the meaning is as stated by the High Court in Bondelmonte as opposed to the meaning given to the term “consider” by the Full Court in Goode. Counsel for the husband submits that the court must give proper, realistic and genuine consideration to the husband’s equal time proposal.
So, somewhat ironically but laudably, counsel for each party argues a meaning for the word “consider” which is less supportive of the order sought by the party whom they each represent.

Does s 60CA and s 60CC on the one hand and s 65DAA on the other have different purposes?

In the case note provided by counsel for the wife, she does not articulate why she asserts the sections have a different purpose. The Full Court in Goode did not mention the purpose of s 65DAA as a reason for the gloss on the word “consider”, nor discussed the purpose of the section.
Section 60CA, and its earlier iterations, have always been in the Act and the earlier iterations of s 60CC have long been there. Their purpose is to ensure any parenting order be in a child’s best interests. Section 65DAA of the Act was added in 2006 and implemented the recommendations of the 2003 Every Picture Tells a Story report (“the report”) and the recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs. The new section was designed, in circumstances where an equal shared parental responsibility order was proposed to be made, to require a court to consider equal time and if not, substantial and significant time. The recommendations explicitly rejected the creation of a presumption of equal time (see Explanatory Memorandum of Family Law Amendment (Shared Parental Responsibility) Bill 2005 at 184).
I am unable to agree that s 60CA, s 60CC(1) and s 65DAA have a different purpose. They have as their purpose the requirement to make a particular parenting order for a child which is in their best interests, reasonably practicable and one the court thinks is proper (s 65D(1) of the Act).

Do s 60CA and s 60CC have a different structure to s 65DAA?

Self-evidentially s 60CA and s 60CC have a different structure to s 65DAA. In Goode the Full Court refer to the “juxtaposition” of s 65DAA(1)(a), s 65DAA(1)(b) and s 65DAA(1)(c) as the reason for attaching a gloss to the word “consider”.
However s 60CA and s 60CC(1), (2) and (3) of the Act taken together require the court when making a particular parenting order to have regard to a child’s best interests as the paramount consideration. Section 65DAA(1)(a) requires the court to consider whether the child spending equal time with each of the parents would be in the best interests of the child. Accordingly, s 60CC(1) and s 65DAA(1)(a) are structurally linked. Counsel for the wife accepted that maybe that was correct. In my view, it is. Consequently, there is no foundation to argue that the structure of these subsections would allow for the conclusion that the word “consider” had a different meaning in each subsection. Once that is accepted, it is then difficult to understand why the positioning of s 65DAA(1)(b) would mean that the word “consider” in that subsection would have a different meaning than in s 65DAA(1)(a). And again, if the word “consider” has the same meaning in (a) and (b), it is unclear as to why structurally that word would have a different meaning in (c).
I accept the submission of counsel for the husband that the word “consider” in s 65DAA(1) has the meaning adopted by the High Court in Bondelmonte, namely an obligation to give “proper, realistic and genuine consideration”.
But for more abundant caution in this case, I shall first consider the provisions of s 65DAA(1) by giving the husband’s proposal for equal time proper genuine and realistic consideration and in the alternative, by giving the father’s proposal for equal time a consideration tending to the result he seeks and consider positively making the order the husband seeks.

The husband’s equal time proposal

The husband’s proposal is to move to equal time commencing on the weekend following D’s 6^th birthday in 2020.
Counsel for the husband submitted that equal time was appropriate because there are two committed parents who are well motivated by the children’s best interests, that there is no issue with risk or inadequate care and the two households are only 11 kms away. Counsel for the husband referred to the detrimental effects of limiting the children’s time with the husband in that they would see his household as somewhere they pack an overnight bag to go to and see him as just the ‘other’ parent.
As already indicated, counsel for the wife submits that it would be an error to conflate meaningful relationship with the amount of time spent.
Dr P seems to have done that. Dr P opined that quantity of time was the important factor, as the chances of quality increased the more time the children spent with their father.
I have difficulty accepting that opinion. It assumes that the husband will be available at all times during the week that he has them to create those opportunities. If you take Dr P’s opinion to its logical conclusion it would mean that equal time orders would be made in most cases in order to maximise the opportunity of quality time with the other parent. What is logically missing from the equation is that time given to the husband in order to increase the opportunities for it to be quality time is taking away time of the children from their mother which can confidently be predicted to be all quality time.

CONSIDERATION OF WHETHER THE CHILDREN SPENDING EQUAL TIME WITH EACH PARENT IS REASONABLY PRACTICABLE (s 65DAA(1)(b) OF THE ACT)

Given the facts in this case, it is useful to deal with s 65DAA(1)(b) of the Act prior to a consideration of whether equal time is in the children’s best interests. In doing so, I am required to have regard to the provisions of s 65DAA(5).

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

The parties did live a lot closer together until the husband decided to reaccommodate himself at Suburb EE which, whilst 11 kms away from where the wife is living, is 25 minutes by car in traffic. Ms M downplayed the significance of the additional distance that the husband now lives from the children’s school and the wife’s home.
On one occasion the husband was not prepared to take an extra hour with the children because he did not want to do the extra pick up. This is in circumstances where it is his case that the distance currently between the parties is not an issue.
The husband’s proposal is not a week about arrangement but an equal time proposal that would see the children living with him five nights in one week during school term and two nights in another. The extra distance the husband has put between the parties would not improve the workability of an equal time proposal.

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

The relationship between the parties is currently barely functional and the lack of trust between them is palpable even after they have been separated for four years.
The major feature of the parties’ parenting is how the tension that exists between the parties is likely to impact upon the children. It is such a significant concern that both parties are suggesting that school to school changeovers are the preferable method of keeping the parties from having face to face contact with one another. Whilst that might minimise the opportunities for the children to be directly exposed to the tension between their parents, it does not eliminate it. The husband’s attitude in refusing any mediation or meeting for coffee or a scheduled monthly meeting to discuss the children is a demonstration of the tension and his rigidity.
The husband complains that on occasions conflict exists at handovers when the wife tries to raise an issue. Any such complaint has to be viewed in the context that the husband refuses to otherwise engage with the wife in situations that are away from the children. Because of that refusal by the husband there is something to the suggestion that the husband brings the conflict to the front door on occasions when that is where changeover happens.
At [85] Dr P highlights that in order for an equal time arrangement to become a more realistic proposition, each parent needs to actively promote a positive relationship with the other parent. There is limited evidence before me that there has been a change in that direction since August 2017 notwithstanding the other recommendations Dr P has made in relation to the parties involving themselves in some post separation parenting programs. There is no evidence that they have done that since August 2017.
Dr P explained that most post-separation parenting programs make a recommendation that at changeovers parties are polite and friendly and do not engage in any conversation about contentious matters between them. Dr P however did say that if one party is simply not engaging in those conversations in any meaningful way, away from the children, then out of frustration and it being a matter of last resort, it is understandable how the wife might raise a parenting issue at changeover.
In relation to having the wife’s invitation to meet with the husband over coffee to talk about the children, and the husband’s refusal to do so, Dr P had some sympathy for the husband’s reaction but said that what the parents really needed was a third party in the room to help them focus on the discussions and conversations that they were having. That observation highlights the rigidity of the husband’s rejection of any approach made to him by the wife for mediation.
I accept that once final property orders are made there may be some reduction in the tension between the parties because of the elimination of that issue. It might be also that one of or both the parties continue to have a lingering feeling of being aggrieved because they were unsuccessful in what they believed was a just and equitable outcome.
The wife candidly accepted that there were a number of things that she did, particularly in the 18 month period after separation, which she looks back on with regret and which she would have done differently today. One of those matters that she concedes is suggesting to the children that they should refer to Ms M as “gran” (Ms M is 47; the husband is 36).
The wife also regretted that she refused a request from the husband that the children be able to spend some time with him on his birthday in 2017.
The husband in his oral evidence downplayed what he did on the occasion when he banged on the wife’s door. B reported to Dr P that ‘Dad was taking Nan to the airport and Mum locked the door. Dad said open the door or I’ll break it down but Mum wouldn’t. Dad went elsewhere.’ B also mentions in the Child Responsive Program Memorandum dated 15 August 2016 that she felt scared when she thought her father was going to break down the door. The husband was reluctant to concede that the children would be frightened by anything he did on that occasion.
The husband has unilaterally retained the children on two occasions.
At Christmas 2014 the husband had the children for three hours. In cross examination the husband agreed that that was an appropriate time given D’s age. On Christmas Eve 2015 the husband unilaterally made the decision, having had the children delivered to him on Christmas Eve, to retain the children on Christmas Eve so that they woke up in his household on Christmas morning. This was a deliberate act of bad faith on the husband’s behalf. He knew that that was not an agreed position and that the wife would be seriously upset by it but he went ahead and did it anyway. The husband agreed that there was a text he sent the wife saying that he had had legal advice that he was able to retain the children on Christmas Eve. The husband in cross-examination agreed that that was a lie and he had received no such legal advice (something that was confirmed subsequently in a letter that his lawyer wrote). The husband also conceded that he had taken the children with very little concern as to the impact that his actions would have on his parenting relationship with the wife moving forward.
On a second occasion the husband knew the wife had given him the children on the proviso that they be returned at 6pm that day. He had already made a booking for overnight accommodation prior to this day. He had every intention of retaining the children overnight even though he led the wife to believe the children would be returned at 6pm. The husband accepted that on this occasion he did what he wanted rather than what was in the best interests of the children.
The husband gave evidence asserting the wife’s behaviour precluded his involvement in two orientation days for kindergarten for the second child. That evidence was disingenuous. Firstly, the wife is not the guardian of the information about school activities which the husband has the ability to obtain himself. Secondly, this was the orientation for the second child and therefore the husband knew about what happened at kindergarten orientation. Thirdly, he knew about the first day one day before it took place, and he knew about the second day eight days beforehand. The husband should not have sworn an affidavit blaming the wife for not letting him know about it.
Counsel for the husband made the point that the wife had not adopted the recommendations in Dr P’s report to immediately increase time from the date of the report onwards and that the time had not in fact changed since June 2017 when it was original set at alternate Friday to Sundays and Monday afternoons. I was not taken to any evidence about any discussions between the parties as to the implementation of any of Dr P’s recommendations.
The wife was taken to a part of Dr P’s report (page 15, para 60) where C had said words to the effect of, ‘Dad and [Ms M] are a team and Mum and us are a team. Mum said Mum and us are a team’. I accepted the wife’s explanation that C may have got the notion that the children and the wife were a team in the context of the wife using “a team” metaphor to motivate the children to get ready to go to school of a morning. The wife denied that she had said anything to the children to lead them to believe that she and the children were a team but when the children were with their father they were not a team in their father’s household. I accept the wife’s denial.
Dr P expressed the hope that the parties could develop flexibility in organising arrangements for the children so that the husband’s work schedule could be accommodated. That flexibility has, by and large, worked one way so far, namely the husband saying he can’t turn up because of work commitments and the wife accommodating that without ranker. The husband has occasionally requested additional time and has received some but not all of what he has requested.
The wife works on Mondays and the parties have reached an arrangement that allows the husband to have time with the children on Monday after school which enables him to be involved in an extra-curricular activity.
Exhibit 15 is a document in which the wife offered the husband two block periods in the school holiday which he rejected on the basis that it would mean that the children’s time with him would be two weeks apart. In contrast the husband had taken holidays and had been involved in work commitments where he elected to spend two weeks away from the children. That is, he spent that amount of time away from the children to suit his own needs but wasn’t prepared to be flexible enough to acknowledge the usefulness to the children to have some block times with him, even though that meant there would be a period of perhaps 14 days where the wife could have taken the children away on holidays.
The husband had little insight as to what the routines were in the wife’s household. His only evidence was that he was aware of the children’s bedtime and dinner time at the household prior to separation. At [49] of his affidavit the husband says that ‘[Ms Gallimore] has a routine for them all which sees bedtime at approximately 7pm’. In oral evidence he also says that 6pm was the family’s dinner time while he was at the home. He conceded that he had made no enquires of the routines in the wife’s household since separation and there is no evidence that the parties have similar routines.
In the context of an equal time arrangement, counsel for the wife asked Dr P if the wife has a right to be concerned about the husband not having made any inquiry as to the routine in the wife’s household regarding such things as bedtimes (“lights out”), showers, dinners and homework. Dr P accepted the wife could be rightly concerned.
Counsel for the husband submits in response that there is no evidence upon which a finding could be made that the children are currently being disadvantaged by different routines in the respective households and that there is nothing reported in their behaviour when moving from one household to another indicating that they are disturbed as a result of different routines at different households. The difficulty with that submission is that the children currently spend limited time in their father’s household and are used to their routine in their mother’s household.

The fact that the husband has made no inquiry as to the children’s current routines in their mother’s household does not assist his application for the equal time arrangement which he proposes.
The wife was taken to a section in Dr P’s report where B said that she is able to FaceTime her mother when she spends time with her father, but is unable to FaceTime her father while living with her mother. B states that ‘Mum says it’s not working or she changes the topic’.
I accept the wife’s evidence that although her work phone might have the facility to FaceTime, she did not want to use her work phone for that purpose and that the only other device in her household was an old iPad that has no audio facility on it (the volume didn’t work).
The husband confirmed in oral evidence that the wife accurately recorded that she had suggested to him that they jointly buy an iPad so that the children could involve themselves in FaceTime communication with the parent with whom they were not residing. The husband confirmed that he told the wife he didn’t have the financial capacity to contribute. I find that that was a total disingenuous position for him to have taken at that time.
The husband also agreed that he at all times had the wife’s company mobile telephone number but had on no occasion when the children had been with him organised for them to ring their mother on that number in order to have a FaceTime call.
The parties have now agreed to orders for FaceTime. The husband indicated in final submissions that he will now fund the purchase of two IPads, one for each household, for the purpose of the children being able to FaceTime the other parent when they are in that household.

Movement of possessions between households

There is a history of there being difficulties moving belongings between households. Dr P at [40] of his report records the wife telling him that the husband made the children take their clothes off and change into his clothes and that they have “clothes for mummy and clothes for daddy”.
Both parties agree that there were considerable difficulties with items moving between the households prior to the release of Dr P’s report.
At the time Dr P saw the parties the husband was adopting a very proprietorial attitude to items that he had given the children as presents or had bought for them to have in his household. He wouldn’t allow the movement of these items to the wife’s household.
The husband claims these difficulties have abated since reading Dr P’s report as he realised that by preventing the movement of possessions between households he was making the children anxious. The wife disagrees, stating that the incidences have not reduced in their frequency. She gives as examples Christmas 2017 and D’s birthday in 2018 where gifts given by the husband to the children were kept at the husband’s household.
Whilst the husband denied that he hadn’t allowed the children to take certain things to the wife’s home, I find that he did make it difficult based upon statements made by the children to their mother.
The wife asserted that the movement of items between households has not significantly improved since Dr P made the suggestions and I accept that is so. A relevant example is that B, on 1 December 2017 (a weekend she was with her father), forgot to bring her swimmers, which she needed for nippers, from the wife’s home. The husband wasn’t prepared to do the travel to get them even in circumstances where he had driven close to the wife’s home on the Saturday, being the day before they were needed. The husband asserted in oral evidence that it would have been out of his way to pick up swimmers for nippers. The husband was shown the maps which comprise Exhibit 16. The husband’s evidence that it was out of his way is not evidence that can be accepted and that evidence does him no credit. In the end one of the other children wanted a rash shirt and the husband then went to the wife’s home to pick up both items. This incident occurred several months after Dr P’s report.
Notwithstanding that Dr P in [85] of his report nominated one of the contra-indicators of equal time as being the difficulties of moving belongings between both homes Dr P, in oral evidence, expressed the view that that was not a significant matter when considering whether or not an equal time or some lesser time arrangement is reasonably practicable.
Dr P downplayed the suggestion that this is a problem in an equal time arrangement, suggesting that in such an arrangement, these difficulties are mitigated by both households developing a stock of items in each household to avoid the need to be moving items between households.
Counsel for the husband made a submission that the transferring of items between the households ceases to be a problem if an equal time order is made because changeovers would be at school. I am unable to see how this would eliminate the problems arising in moving school books and homework between households or when a child wished to take a toy from the husband‘s home at a time they returned to the wife.
Overall I find that there are ongoing problems for the children in moving items they need or want between the two households.

The husband’s work commitments

The evidence about the husband’s work commitments was somewhat contradictory.
The husband is a director of a company services primarily for Government departments and local councils. The husband indicated that 70 per cent of his company’s work is in the former category and is mainly carried out at night. The start can vary between 5pm and 9pm and go throughout the night until dawn. In those circumstances if the husband is onsite at a job he would sleep in the morning.
The husband initially significantly downplayed the amount of time he was committing to his business. He said he was only working 25 hours a week but when he reflected on that answer, he said it was probably closer to 35 hours a week. The husband initially said he mostly worked offsite and had an office in the home in which he lives and he worked from that office. The husband said he does need on occasions to be on site, although he says recently he has increased the number of personnel on his crew from 8 to 10, which gives more insurance against being called out because of the non-availability of a crew member. The husband claimed that he is only spending about two times a month on site. When tested, the husband agreed that if he had a job outside of Sydney he would be away perhaps for three to four weeks whilst he established that job and got it up and running.
There have been a significant number of examples where the husband has texted the wife to say that he was unavailable on a particular occasion to spend time with the children because of work commitments and the wife has accommodated that given that she is always there for the children.
The report from Ms Q, provided to the court on the last day of the hearing, sets out details of the recent expansion of the husband’s company and the value of the role the husband plays in the company assessed at $250,000 per annum. This evidence does not sit comfortably with the husband’s oral evidence about the level of demand LPL places upon him. I find that the husband significantly underplayed that demand.
I am left in some doubt as to the reliability of the husband being available to parent the children in an equal time arrangement given the commitments that he has in supervising the operational activities of the business conducted by his company.

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

The husband conceded that the parties’ parenting relationship is not as harmonious and peaceful as he would like, although the husband believes that the tensions between himself and the wife are not significant compared to what he has heard other separated fathers “endure”.
The parties have a total inability to speak together civilly face to face or to speak on the phone together. The husband during his evidence gave the impression that he would far prefer text messages because he had no confidence at all that the parties could effectively communicate in a way by telephone and that would leave both in no doubt as to what the conversation was that they had.
The husband agreed that the wife offered to meet with him on several occasions including face to face time over a coffee, a monthly meeting about the children or at mediation. The husband initially seemed to deny all these requests. In re-examination the husband moderated this evidence saying there was one occasion (the date of which he did not specify) where the parties had met to talk about the children and the conversation had, he said, quickly turned to issues of property and the parties got into an argument. He offered that as an explanation as to why he would not meet the wife again to talk to her about the children over a cup of coffee.
The wife said that the changeovers were tense and not a pleasant experience. She said that the parties had limited communication on occasions when they came face to face at changeover.
Counsel for the husband suggested recent text messages were ‘civil, amicable and responsive’. He submitted that sometimes the parties agreed, sometimes they didn’t, but there are no insults or threats in the messages. Dr P agreed with the proposition that the text messages that he has seen passed between the parties are not as bad as some of the text messages he has seen in other cases. The text messages are generally to the point and quite transactional. There is no real sharing of information about the children unless it is necessary because the husband’s time cannot take place (e.g. a child is unwell). They fall short of actively promoting the children’s positive relationships with the other parent.

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

I have discussed above the likely effect of the change proposed by the husband.

(e) such other matters as the court considers relevant

Exhibit 18 is text communication. In it the husband suggests that because he was unavailable on a particular Thursday night to have the children that Ms M could look after them. The husband said the wife ignored that text. There is a continuing legacy arising from the circumstances of the separation.
There is a lingering and fundamental trust issue between the parties. As indicated, the husband had a sexual relationship with Ms M during the wife’s third pregnancy and then for a period had a concurrent relationship with both women. There is a real possibility, on the husband’s equal time proposal, that Ms M will have a significant role in the care of the children while the husband fulfils his demanding role in LPL. The wife and Ms M have barely said a word to one another in the last three years.

Conclusion about reasonable practicality

Having considered the matters in s 65DAA(5) by giving them both proper, genuine and realistic consideration and consideration tending to a result or considering positively the making of an order, I find that it is not reasonably practicable for the children to spend equal time with their father.

CONSIDERING WHETHER THE CHILDREN SPENDING EQUAL TIME WITH EACH PARENT IS IN THE CHILDREN’S BEST INTERESTS (s 65DAA(1)(a) OF THE ACT)

If I am wrong about an equal time arrangement not being reasonably practicable, I now turn to consider whether or not the husband’s proposal for equal time is in the children’s best interests.
Dr P discusses his recommendations in relation to the children spending equal time with each of their parents primarily at [85] and [87] of his report of 18 August 2017.
At [85] under the heading “Equal Time” he says:
It would be in the children’s best interests that the children continue to reside with [Ms Gallimore] and spend time with [Mr Gallimore]. [Mr Gallimore] is seeking that all three children commence week-about care or a seven-seven arrangement when [D] reaches five years of age (…2019). Given the “separateness” of both homes and the parents current difficulties [sic] communication with each other, it is the clinician’s view that, based on conduct to date, this living arrangement would not be in the children’s best interests. For this to become a more realistic proposition, the parents would need to demonstrate a much improved capacity with regards to communicating about the children’s needs, are able to relax (and facilitate) the movement of belongings between both homes, and actively promote positive relationships with the other parent before such an arrangement would not represent yet additional stress on the children.
Notwithstanding that recommendation about equal time, when Dr P makes his recommendation under the heading of “substantial and significant time”, he says at [87]:
The current arrangements could be [in his oral evidence [Dr P] sought to amend his report by adding the word ‘barely’ at this point in this sentence] considered sufficient to satisfy the concept of “substantial and significant time” spent [sic] the children with each party. The current arrangement allows [Mr Gallimore] to have contact with the children on weekends, and also enables him to have involvement in extracurricular activities. It is in the clinician’s view [sic] that the children would benefit from contact increasing from Friday to Sunday afternoon to Friday to Monday morning (but still maintaining responsibility for Monday afternoon gym), and then have an overnight stay on the alternate Monday to Tuesday morning (which is then 4 nights out of 14). This could be trialled for 12 months and then incremented by another night (approx. in January 2019), then increment another night again each year until equal time is achieved (unless agreed earlier).
It is difficult to discern from a reading of those two paragraphs in Dr P’s report how those two paragraphs could stand together or otherwise be reconciled. It is difficult to understand on the face of the report, how Dr P could conclude that equal time was not in the children’s best interests in June 2017 but assume that it would be by 2020.
In oral evidence, Dr P indicated that his recommendation in [85] of the report was based upon the way the parties presented to him at the time of the interviews for the report in June 2017 and the facts as he knew them at that time. Dr P said that in general terms the recommendations that he made in [87] of his report were based on hope and were ‘aspirational’. Counsel for the wife submitted that what is in [87] of Dr P’s report was a ‘triumph of optimism over reality. Hope over history’. There is substance in that submission. Recommendations based on hope rather than an analysis of the possibilities that present themselves on the facts of the case cannot be given much weight.
In oral evidence, Dr P said the principle contra-indicator to equal time was having communication with oppositional responses with one parent almost knowingly creating a different routine from the other household environment. He said this results in an equal care arrangement becoming even more difficult and it is incredibly difficult for a young child to make that work. The evidence in this case prevents a finding of that nature.
On the other hand, Dr P gave very strong evidence about the advantages to the children of the wife’s proposal for changeover. The husband still resisted that proposal in final submissions. His resistance demonstrates his rigidity in engaging with a sensible proposal. As discussed below, Dr P was concerned that the husband’s reluctance to adopt his recommendation to change the current arrangements in relation to changeover showed little focus on how the children deal with the two different worlds in each household.

Conclusion about equal time and best interests

Many of the matters discussed above relevant to the reasonable practicability of equal time are also relevant to a consideration of best interests.
I have regard to all of those matters already discussed in respect of the statutory considerations set out in s 60CC(2) and (3) of the Act and having given them both proper, genuine and realistic consideration and consideration tending to a result or considering positively the making of an order, I find that the husband’s proposal for an eventual progression to equal time is not in the children’s best interests.

SUBSTANTIAL AND SIGNIFICANT TIME

The wife’s proposal provides that the children spend substantial and significant time with their father. In respect of the amount of time, the wife’s proposal is in the children’s best interests and is reasonably practicable.

OTHER ASPECTS OF PARENTING ORDERS

Term time and School holidays

The question arises as to how quickly the time arrangements should be increased.
The parties’ respective proposals in relation to school holidays are both somewhat convoluted but there is some common ground.
The wife’s proposal for mid-term school holidays is that in 2018 the children would be with their father for a block of five nights, failing agreement from 4pm Friday to 4pm Wednesday. In 2019 that would increase to six nights, failing agreement by adding Wednesday night and by 2020 the children would spend half mid-year school holidays with their father.
The husband’s proposal for mid-year school holidays in 2018 and 2019 is for seven nights broken into two blocks of five nights (Friday to Tuesday) and two nights (Monday and Tuesday). In 2020 the husband proposes that the children spend equal time with their parents during mid-term school holidays.
Consequently, the parents agree that commencing 2020 school year the children would be evenly sharing mid-term school holidays. They remain apart as to how much time the children spend with their father in the 2018 and 2019 school years.
The difficulty with the husband’s proposal in 2018 and 2019 is that it does not give the wife the option of taking the children away for a week during mid-term school holidays. I am mindful of the fact that the children have not spent any block period of time with their father at all yet. That circumstance is supportive of the notion that there should be some graduation to half school holidays particularly given D’s age. There is no suggestion the children should be split up during school holidays. There is, on the other hand, no need to wait until 2020 to get to half school holidays. I propose to implement the wife’s proposals but in a more accelerated way. The children can spend five nights with their father in the second term school holidays and six nights in third term 2018 school holidays and term 1 2019 school holidays. Thereafter the children can spend one half of each school holidays with each parent.

Christmas holidays

The parties have some similarity in their attitudes towards holiday time in the short term, namely that they don’t want extended periods (ie three weeks) where the children are unable to see one or the other of them.
In relation to holiday time, the wife asserts that she doesn’t want to give three periods of block time during Christmas holidays because of the previous emotional effect that she has observed in the children upon their return from extended time with their father. She claimed that B in particular was unsettled. She said that the children were unsettled for two to three days.
The wife was subsequently taken to a part of Dr P’s report in which Dr P reported on his interview with B. That report raises some questions about whether or not the wife is describing B’s reaction or B’s reaction to the wife’s anxiety about her being away for an extended period.
The wife proposes that in January 2019 the children are with their father for two six block periods extending his normal alternate weekend. In January 2020 for two seven day block periods extending normal weekends. In January 2021, three seven day block periods extending normal weekends and in January 2022 for three seven day block periods extending normal weekends with the option of the husband being able to consolidate two of those block periods into a 14 day period.

That notwithstanding the provision of Order 2, the Mother shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with her.
That notwithstanding the provision of Order 2, the Father shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with him.
That the children will spend the following additional time with their Mother if the children are not already spending with their Mother on that day:

The Children's Birthday

5.1.On B's Birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s Birthday until the commencement of school or 10am the day of her Birthday.
5.2.On C's Birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s Birthday until the commencement of school or 10am the day of her Birthday.
5.3.On D’s Birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.

Mother's Birthday
5.4.On the Mother's birthday from after school or 3pm the day immediately prior to the Mother’s birthday to 5.30pm the day of the Mother’s birthday.

Mothers Day
5.5.That where Mothers Day does not fall on a weekend the Mother is spending time with the children, then for that weekend the children spend time with their Mother from 5pm the day immediately prior to Mother’s Day until 5pm on Mother’s Day.

Christmas Time
5.6.Commencing 2018, from 9am on Christmas Eve until 3pm on Christmas Day and thereafter in each even numbered year.
5.7.Commencing 2019, from 3pm on Christmas Day until 5pm Boxing Day and thereafter in each odd numbered year.

That the children will spend the following additional time with their father if the children are not already spending with their father on that day:
The Children's Birthday
6.1.On B's Birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s Birthday until the commencement of school or 10am the day of her Birthday.
6.2.On C's Birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s Birthday until the commencement of school or 10am the day of her Birthday.
6.3.On D’s Birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.
Father’s Birthday
6.4.From 9am on the Father's birthday to the commencement of school or 9am the morning following the Father’s birthday.

Fathers Day

6.5.That where Fathers Day does not fall on a weekend the Father is spending time with the children, then for that weekend the children spend time with their Father from 9am on Father’s Day to the commencement of school or 9am the day following Father’s Day.

Christmas Time

6.6.Commencing 2018, from 3pm on Christmas Day until 5pm on Boxing Day and thereafter in each even numbered year.
6.7.Commencing 2019 from 9am on Christmas Eve until 3pm on Christmas Day each alternate year and thereafter in each odd numbered year.
Electronic Communication

That the Mother and Father have reasonable communication, including face time and telephone with the children at all times when the children are spending time with the other parent as agreed and failing agreement between 6.00pm- 7.00pm each evening.
That neither party will unreasonably prevent the children from telephoning the other parent.

Change of Health

That each parent is to notify the other as expeditiously as possible and not more than 24 hours after the event occurring, of any matters relating to the health or wellbeing of the children (save for common coughs and colds), which require the attention of a medical practitioner or health professional with both parents acknowledging that they each have an equal right to participate in the decisions on the appropriate treatment to be administered to the children.
That the Father and Mother contact the school and or day care to ensure they received a copy of school reports, photographs and newsletters with such costs to be borne by each parent individually.
That the Father and Mother be entitled to discuss the children's educational progress with the children's teacher and both parents be at liberty to attend parent teacher interviews and any other activity at the school/s that the children would ordinarily attend.
That these Orders authorise any doctor, hospital and/or health professional to provide to the Mother and/or Father any information concerning the health of the children
That each parent will ensure that when the children spend time with that parent that they attend with any clothing, books or school paper which they require for school or extra-curricular activities.
That the Father and Mother agree that they will ensure that the children attend all extra curricular activities inclusive of any sports event of which the children may be enrolled. The mother and father will jointly consent to the enrolment of the child in any extra curricular activities.
That each parent will ensure that the items that were sent with the children at the changeover are returned at the conclusion of the time that the children are spending with that parent.
That each party is to advise the other of their current address, telephone number and each nominated email address.
The Mother is to inform the Father and the Father is to inform the Mother within three (3) days of either party moving residence, the address of that residence and the respective contact telephone numbers in the event of change.

Conduct

That neither party denigrate the other party or any other future partner, family members or friends whilst in the presence or hearing of the children or allow, with their knowledge, a third party doing so
That each party will encourage, and not undermine, the children's relationship with the other party.

Notice

That in the event that either the Father or the Mother are unable to spend time with the children for a period of in excess of 12 hours due to work or personal commitments, he or she will provide reasonable notice in writing to the other parent of their inability to spend such time with the children.

Passports

That within 28 days from the date of these Orders the Mother shall provide to the Father applications for Australian passports for each of the children and the Father shall, within 7 days of receipt of the applications, sign and return the applications to the Mother to allow the Mother to seek the issue of passports for each of the children.
That thereafter the parties shall do all acts and things and sign all documents as shall be necessary to ensure that the children have a valid Australian passport at all times and pay the costs of such passport in equal shares.
That the children’s passports shall be retained and held by the Mother and shall be provided to the Father by agreement between the parties and subject to order 24.

Travel

That the Mother and Father shall be permitted to remove the children from the Commonwealth of Australia, provided that:
24.1.the travelling parent shall provide the other parent with 6 weeks’ notice of their intention to travel with the children; and
24.2.the travelling parent shall provide the other parent with a full itinerary of their proposed travel including details of the mode of transportation, return flights/tickets (including flight numbers), transfer, accommodation and contact details for the children not less than 28 days prior to departure; and
24.3.within 5 days of receiving the information as provided for in Order 24.2 the non-travelling parent shall provide the travelling parent with written notice of their consent for the children to travel and such consent cannot be unreasonably withheld; and
24.4.the travelling party shall be responsible for the payment of the children’s flights and accommodation during the time they are travelling with them; and
24.5.such trip shall not interfere with the non-travelling parent’s time with the children in accordance with these Orders and shall occur in the times the parties spend with the children in the school holiday unless it is otherwise agreed between the parties in writing.
24.6.Neither party will travel overseas with the children until D turns 6 save an except for travelling to New Zealand
24.7.Upon D turning 6, and until he turns 8, it is agreed that neither party will travel overseas for more than 7 days.

25. The Mother shall make the children’s passports available to the Father upon his compliance with Order 24 should he elect to travel with the children and the Father shall return the children’s passports to the other within 7 days of the children returning

SCHEDULE 2- PARENTING ORDERS SOUGHT BY THE WIFE (Exhibit 29)

The final parenting orders sought by the wife were substantially the subject of agreement but the parties still required a determination in relation to the time each of the children would live with each parent both during school term and school holidays. There was also a dispute in respect of Easter and changeover.

Live With

1 – 4 ……

5. That the children live with their mother.

That until D attains the age of 5 on 25 January 2019, the children spend time with the Father in a two-weekly cycle as follows:
6.1In week 1 from 5pm Friday until 5pm Monday.
6.2 In week 2 from Monday after school or pre-school until 5pm.
That upon D attaining the age of 5 on 25 January 2019 and thereafter, the children spend time with the Father in a two-weekly cycle as follows:
7.1In week 1 from 5pm Friday until 5pm Monday.
7.2 In week 2 from Monday after school or pre-school until the commencement of school or preschool on Tuesday.
That notwithstanding orders 5 – 7 above, the children will spend the following additional time with their Mother if the children are not already spending [time] with their Mother on that day:
8.1 – 8.7 …..
Easter
8.8 Commencing in 2018, from 9am Good Friday to 5pm Easter Monday and continuing thereafter in each even numbered year. (Order 8.8 )
School Holidays
8.9 At all other times when the children are not spending time with the Father pursuant to these Orders noting that when the Father’s time commences pursuant to Order 9.10.4 below the Mother shall also be at liberty to elect a 14 day block period to enable her to travel with the children provided that she makes such election and provides the Father with written notice of such election no less than 6 weeks prior to the elected block and the Father shall not unreasonably withhold consent to that election.
That notwithstanding order 5 – 7 above, the children spend the following additional time with their father if the children are not already spending time with their father on that day:
9.1 – 9.8 ….
9.9In all mid-year school holiday periods as follows:
9.9.1Commencing in 2018 the father’s time pursuant to orders 6.1 and 7.1 above shall be extended so that he spends time with the children for a 5 day block period as agreed between the parties and failing agreement from 4pm Friday to 4pm Wednesday;
9.9.2Commencing in 2019 the father’s time pursuant to order 7.1 above shall be extended so that he spends time with the children for a 6 day block period as agreed between the parties and failing agreement from 4pm Friday to 4pm Thursday;
9.9.3Commencing in 2020 and continuing thereafter for one half of the school holiday periods at times to be agreed between the parties and failing agreement for the first week in all odd numbered years and the second half in all even numbered years.
9.10In the Christmas school holiday period as follows:
9.10.1Commencing in January 2019 for no more than two (2) 6 day block periods which are to extend the Father’s time pursuant to Orders 6.1 and 7.1 above so that he is spending time with the children from 4pm Friday until 4pm Thursday (subject to Orders 8.6, 8.7, 9.6 and 9.7 above);
9.10.2Commencing in January 2020 for no more than two (2) 7 day block periods which are to extend the Father’s time pursuant to Orders 6.1 and 7.1 above so that he is spending time with the children from 4pm Friday until 4pm Friday (subject to Orders 8.6, 8.7, 9.6 and 9.7 above);
9.10.3Commencing in January 2021 for no more than three (3) 7 day block periods as agreed between the parties and failing agreement on a week about basis between the parties with the Father’s first week to commence in the first week odd numbered years and the second week in all even numbered years (subject to Orders 8.6, 8.7, 9.6 and 9.7 above); and
9.10.4Commencing in January 2022 and thereafter for a total of 3 7 day block periods however allowing the Father to elect to take a 14 day block period with one 7 day block period (subject to Orders 8.6, 8.7, 9.6 and 9.7 above); and provided that Order 9.10 below is complied with.
9.11 For the purposes of the Father making elections pursuant to Order 9.10.4 the Father shall elect the 14 day block period he wishes to exercise no less than 6 weeks prior to the commencement of the Christmas school holiday period in writing to the Mother and the Mother shall not unreasonably refuse such election.

Changeover

That for the purposes of changeover:
10.1if it is a day care or school day the Father will collect and return the children from day care or school at the commencement and conclusion of his time however if D has not yet started school or is not attending day care on the days the Father is collecting B and C from school then he will collect D from the Mother’s residence; and
10.2 in the event the children are not at day care or school then the party with whom the children are spending time with will deliver the children to the other party at the commencement of that party’s time.

11 – 30 ….

SCHEDULE 3- PARENTING ORDERS SOUGHT BY THE HUSBAND (EXHIBIT 3)

That upon the making of these Orders until the weekend following D’s 5th Birthday on … 2019, the Father spend weekly time with the children as follows:-

Stage 1

1.1Each alternate weekend from the conclusion of the school day at 2.55pm Friday afternoon until 5.30pm Monday evening whereby the Father will collect D from the Mother’s residence at the commencement of this time and C & B from school of a Friday afternoon and the Mother is to collect the children from the Father’s residence at the conclusion of this time on Monday evenings.
1.2Each alternate Monday from the conclusion of school and day care at approximately 2.55pm until 9.15am Tuesday morning whereby the Father will collect the children from school/day care at the commencement of this time and return C & B to school at the conclusion of the time and D to the Mother’s residence.

Stage 2

That commencing on D’s 5th Birthday on … 2019 until the weekend following Father’s Day 2019, (being a period of approximately 7 months) the Father spend weekly time with the children as follows:-
2.1Each alternate weekend from the conclusion of the school day at 2.55pm Friday afternoon until 5.30pm Monday evening whereby the Father will collect D from the Mother’s residence at the commencement of this time and C and B from school of a Friday afternoon and the Mother is to collect the children from the Father’s residence at the conclusion of this time on a Monday evenings.
2.2Each alternate Monday from the conclusion of school at 3.10pm until 9.10am Wednesday morning whereby the Father will collect the children from school at the commencement of this time and return the children to school at the conclusion of this time.
Stage 3
That commencing on the weekend following Father’s Day 2019 until D’s 6th Birthday on … 2020 the Father spend weekly time with the children as follows:-
3.1Each alternate weekend from the conclusion of school Friday afternoon until the commencement of school Tuesday morning at 9.10am whereby the Father will collect the children from school at the commencement of this time and return the children to the school at the conclusion of this time.
3.2Each alternate Monday from the conclusion of school at approximately 3.10pm until 9.10am Wednesday morning whereby the Father will collect the children from school at the commencement of this time and return the children to school at the conclusion of this time.
Stage 4
That commencing on the weekend following D’s 6th Birthday 2020, the Father spend weekly time with the children as follows:-
4.1Each alternate weekend from the conclusion of school at approximately 3.10pm on Friday afternoon until 9.10am Wednesday mornings whereby the Father will collect the children from school at the commencement of this time and return them to school at the conclusion of this time.
4.2Each alternate Monday from the conclusion of school at 3.10pm until 9.10am Wednesday morning whereby the Father will collect the children from school at the commencement of this time and return the children to school at the conclusion of this time.
At Easter time, each alternate year ending in an even number commencing 2018 from 9.00am Good Friday until 5.00pm Easter Monday whereby the Father is to collect the children from the Mother’s residence at the commencement of this time and the Mother is to collect the children from the Father’s residence at the conclusion of this time.
(a)During each mid-term school holiday period as follows:-
(i)     Until such time as D attains the age of 6 years old, in addition to the time spent with the children at Stages 1 and 2 as set out above in these Orders, the time be extended to include the Monday and Tuesday evenings following the Father’s weekend and in the alternative week to extend to include the Tuesday evening.
(ii)    Upon D attaining the age of 6 years old, the periodic time set out above is to be suspended and the children are to spend time with the Father by way of agreement and failing agreement for the first week of each holiday period in the years ending in even numbers and the second week in years ending in odd years.
(b)At Christmas time, each alternate year from 9.00am Christmas Eve until 3.00pm Christmas Day commencing 2019 and each alternate year commencing 2018 (being even years) from 3.00pm Christmas Day until 5.00pm Boxing Day, and further time as follows:-
(A)   Until D attains the age of 6 years old being Christmas 2020, for a period of 3 x 6 night block during the school holiday period as gazetted by the NSW Department of Education (or other such name as it may subsequently be known) period such that his time pursuant to the term arrangement is extended to facilitate the 6 night block commencing 2018;
(B)   Upon D attaining the age of 6 years old being Christmas 2020, the time gazetted by the NSW Department of Education (or other such name as it may subsequently be known) be divided equally between the parties by way of agreement and failing agreement in each even year for the first half and in each odd year for the second half of the holiday period, with this time to be suspended in accordance with 9(f) above.

SCHEDULE 4 - PROPERTY SETTLEMENT ORDERS SOUGHT BY THE WIFE (EXHIBIT 29)

These Orders are made by way of alteration of property interest pursuant to Section 79 of the Family Law Act 1975.
That within eight (8) weeks from the date of these Orders, the Husband shall do all acts and sign all documents necessary to transfer to the Wife all his right, title and interest in the property situated at and known as F Street, Suburb G, New South Wales being the whole of the land described in folio identifier … (“the Suburb G property”) on the following terms and conditions:
32.1That the Husband deliver to the Wife a signed transfer in registrable form; and
32.2That the Husband sign all documents and do all things necessary to discharge the mortgage to Commonwealth Bank of Australia (…71).

That within eight (8) weeks from the date of these Orders, the Husband shall do all acts and sign all documents necessary to transfer to the Wife all his right, title and interest in the property situated at and known as H Street, Suburb J, New South Wales being the whole of the land described in folio identifier … (“the Suburb J property”) on the following terms and conditions:
33.1That the Husband deliver to the Wife a signed transfer in registrable form; and
33.2That the husband sign all documents and do all things necessary to discharge the mortgage to K Bank (…).
That in relation to the Husband’s interest in L Pty Ltd (ACN …) and simultaneous with the Order 32-34 [sic] above:
34.1The Wife shall do all acts and sign all documents necessary to relinquish all of the Wife’s beneficial entitlements, or loan accounts in the companies in favour of the Husband;
34.2That the husband sign all documents and do all things necessary to indemnify the wife in respect of all debts owed by the wife and the husband in respect of the company and will enter into any agreement necessary to give effect to this indemnity.
34.3That the husband be solely entitled to his shares in L Pty Ltd.
That within 8 weeks from the date of the orders the husband cause to be paid to the wife of sum $[this sum was to be 60 per cent of the overall net assets as distributed between the parties and at final submissions it was spoke about to be approximately $321, 400].
That unless otherwise specified in these Orders:
36.1Each party be solely entitled to all chattels, goods, motor vehicles, furnishings and other property in the possession and control of each party as at the date of these Orders.
36.2That each party be solely entitled to any money, shares and debentures which stand in such parties’ name as at this date.
36.3That each party by solely entitled to any superannuation benefit held in such parties’ name and each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other, other than already specified in these Orders.
36.4Each party be solely liable for and indemnify the other for against any debt, loan or liability whatsoever held in such parties’ name as at this date.
That within five (5) weeks from the date of these Orders the Husband sign all documents and do all things necessary in his personal capacity or in his capacity as director of L Pty Ltd to transfer to the Wife the motor vehicle identified as an … registration number … free of any encumbrances.

SCHEDULE 5 - PROPERTY SETTLEMENT ORDERS SOUGHT BY THE HUSBAND (EXHIBIT 3)

That the Respondent Husband do all acts and things necessary and sign all such documents as may be required to transfer to the Applicant Wife all of his right title and interest situated at and known as F Street, Suburb G being the whole of the land described in Folio Identifier … (“The Suburb G Property”) subject to all encumbrances.
That the Applicant Wife do all things and acts necessary and sign all such documentation as to refinance the mortgage currently encumbering the property in favour of AA Bank into her sole name and indemnify the Respondent Husband thereafter and keep him indemnified in relation to that liability.
Upon the making of these Orders within seven (7) days the Applicant Wife is to deposit into the bank account held by L Pty Ltd held with Westpac Bank, BSB …, being Account Number …77 or other such bank account as directed by the Respondent Husband the sum of $400,000.00.
That the Respondent Husband do all such things and acts necessary and sign all such documentation as may be required to transfer to the Applicant Wife all of his right title and interest in the property situated at H Street, Suburb J being the whole of the land particularly described in Folio Identifier …, (“The Suburb J Property”) subject to all encumbrances.
That the Applicant Wife do all acts and things as necessary and sign all such documentation to refinance and/or transfer into her sole name the mortgage encumbering the Suburb J property currently in favour of K Bank into her sole name and thereafter to indemnify and keep indemnified the Respondent Husband in relation to this encumbrance.
That the Respondent Husband retain to the exclusion of the Wife the entity known as “L Pty Ltd” and the Applicant Wife is hereby declared to have no legal or equitable interest in that entity.
That the Respondent Husband indemnify and keep indemnified against any current or future liability the Applicant Wife in respect of any creditors of L Pty Ltd including but not limited to the debt due and payable to the Australian Taxation Office.
That the Applicant Wife relinquish any right title or interest she may hold in the 1/6 interest held by the Husband in the boat.
That the Respondent Husband as the Director of L Pty Ltd, ACN … take all steps and do all things as necessary and sign all such documents as to transfer to the Applicant Wife the Audi motor vehicle currently registered in the name of L Pty Ltd and driven by the Wife into her sole name and thereafter the Applicant Wife is to assume responsibility for all payments and expenses associated with that motor vehicle.
Simultaneously with Order 5, that the parties jointly attend upon the E Credit Union and sign all such documentation required by that financial institution to cause the joint bank account currently held between them being account number …49 to be closed and any funds remaining in that bank account to be divided between them in equal shares.
That other than as provided for in these Orders, the Applicant Wife and Respondent Husband be declared to be and have the sole right, title and beneficial interest and ownership in:
11.1.Any chattels, goods, jewellery, furnishings, monies standing to their credit in their bank accounts, credit union accounts and or accounts with any other financial institutions at other time or other types of property which are at the date of these Orders in their respective possession.
11.2.Any monies, share portfolios, debentures, superannuation entitlements, motor vehicles and any other assets which stand in their sole name respectively as at the date of these Orders.
11.3.That unless otherwise specifically referred to in these Orders that each party shall indemnify and keep the other indemnified with respect of any liabilities, loan or personal debts to which either of them are respectfully obligated by reason of the operation of law.

[2018] FamCA 249

23 April 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Consent

Duty of Care

Expert Evidence

Jurisdiction

Natural Justice