HENDRY & BANISTER

[2019] FamCA 329

FAMILY COURT OF AUSTRALIA

HENDRY & BANISTER [2019] FamCA 329

FAMILY LAW – CHILDREN – With whom a child spends time – Where the husband seeks an increase of time with the children – Where the family report supports either a small increase in time or the retention of the status quo – Where the wife opposes an increase in time – Orders.

FAMILY LAW – PROPERTY – Interim orders with respect to mechanics of sale.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Ms Hendry

RESPONDENT: Mr Banister

FILE NUMBER: ADC 2272 of 2018

DATE DELIVERED: 23 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Rosey Batt & Associates

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

Orders

*Pursuant to Regulation 17.02 of the Family Law Rules 2004 this order is amended on the 29 May 2019.

1. That on the sale of the property at P Street, Suburb T in the State of South Australia comprised and described in Certificate of Title Volume … Folio … (“the Suburb T property”) the proceeds of sale shall be applied as follows:-

   (a)       Towards mortgages that are secured against the Suburb T property;

   (b)       Towards payment of commission and conveyancing fees;

   (c)       Any outstanding rates, taxes and levies; and

   (d)The balance to a joint interest bearing account in the joint names of the parties requiring the signature of both parties to release any funds.

2. That on the sale of the property at E Street, Suburb G in the State of South Australia comprised and described in Certificate of Title Volume … Folio … (“the Suburb G property”) the proceeds of sale shall be applied as follows:-

   (a)       Towards mortgages that are secured against the Suburb G property;

   (b)       Towards payment of commission and conveyancing fees;

   (c)       Any outstanding rates, taxes and levies; and

   (d)The balance to a joint interest bearing account in the joint names of the parties requiring the signature of both parties to release any funds.

3. That until further order the husband use his reasonable endeavours to pay to the wife by direct electronic funds transfer the sum of SIX HUNDRED DOLLARS ($600) per week NOTING that conditional upon the payments being made to her, she undertakes not to lodge an application with the Child Support Agency for periodic child support.

4. That the wife authorise the sales agent to communicate relevant information in respect of the sale of the Suburb T property to the husband.

5. That in the event that an offer is received to purchase the Suburb T property, the wife be restrained and an injunction granted restraining her from accepting any such offer or negotiating or providing any instructions to negotiate without consultation with and the written consent of the husband.

6. That in the event that an offer is received to purchase the Suburb G property, the husband be restrained and an injunction granted restraining him from accepting any such offer or negotiating or providing any instructions to negotiate without consultation with and the written consent of the wife.

7. That notwithstanding the Suburb T property is held in the name of the wife solely, the wife be restrained and an injunction granted restraining her from making decisions surrounding the sale of the Suburb T property without consultation with and the written consent of the husband.

8. That notwithstanding the Suburb G property is held in the name of the husband solely, the husband be restrained and an injunction granted restraining him from making decisions surrounding the sale of the Suburb G property without consultation with and agreement from the wife.

9. That the parties do share equally in the payment of all agreed costs associated with preparing the Suburb T property and the Suburb G property for sale and any sales, marketing and conveyancing expenses.

10. That within seven (7) days of being provided with the same by the husband or his solicitor, the wife do sign all such documents as are necessary to put the home loan repayments on hold or to reduce the payments pending the sale of the Suburb T property and the Suburb G property.

11. That within seven (7) days the wife do sign all such documents presented to her by the accountant for the Banister Family Trust to finalise the financial statements and taxation returns for the year ending 30 June 2018 PROVIDING that the said financial statements and taxation returns are consistent with the Minutes of the meeting of the Trustee held to determine trust distributions for the 2018 financial year.

12. That the parties have equal shared parental responsibility for the children X born … 2002, Y born … 2004, W born … 2006 and Z born … 2010.

13. That X live with the husband spend time with the wife in accordance with his wishes and agreement between the parties.

14. That Y spend time with the husband:-

    (a)During school term from the conclusion of school on Thursday until 5.00 pm Sunday each week;

    (b)For one half of school holiday periods as may be agreed between the parties and in default of agreement from the conclusion of school (or 3.30 pm Friday) until the following Friday at 3.30 pm;

    (c)At such other times as may be agreed between the parties or at Y’ election.

15. That W and Z spend time with the husband as follows:-

    (a)Commencing 31 May 2019, during school term time from the conclusion of school Friday until the commencement of school on the following Monday and each alternate weekend thereafter; and

    (b)As and from 27 September 2019 during school term time from the conclusion of school Thursday until the commencement of school on the following Monday and each alternate weekend thereafter;

    (c)For half of each school holiday period by agreement and in default of agreement from the conclusion of school or 3.30 pm on Friday until 3.30 pm on the following Friday.

16. That the children (save for X) spend time with the parties as follows:-

    (a)In odd-numbered years from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day with the husband and from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day with the wife.

    (b)In even-numbered years from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day with the wife and from 12.00 pm on Christmas Day until 12.00 pm Boxing Day with the husband.

17. That the children (save for X) spend time with the parties on the children’s birthdays as follows:-

    (a)With the parent who they are not otherwise spending time with as follows:-

    (i)If a school day, then for two (2) hours from the conclusion of school; and

    (ii)If a non-school day, then for four (4) hours at such times as may be agreed between the parties, but in the absence of agreement THEN from 10.00 am until 4.00 2.00 pm.

18. That unless otherwise agreed in respect of any handover that does not occur at school, handovers shall take place by the wife delivering the children to the husband to his residence at the commencement of the children spending time with him and the husband returning the children to the wife at her residence at the conclusion of spending time with him.

19. That the children be at liberty to telephone the other parent at any reasonable time.

20. That each party advise the other of there being any serious injury or medical event involving the children as soon as practicable.

21. That each party be at liberty to travel with the children during the time they spend with the children pursuant to Court Orders or as agreed between the parties within South Australia on the basis that the other parent is informed of the location of the children and any additional contact details if the regular contact numbers are not available.

22. That each party be at liberty to travel interstate with the children during the time that they spend with the children or as agreed between the parties PROVIDED THAT:-

    (a)The other party is advised no later than seven (7) days prior to the intended departure (unless circumstances deem that impossible); and

    (b)Provide additional contact details if the regular contact numbers are not available.

23. That each party be at liberty to travel internationally with the children during the time that they spend with the children pursuant to Court Orders or as agreed between the parties, subject to the following:-

    (a)That the parties both sign all documents required (including any passport application) to allow the children to travel;

    (b)That the travelling party provide the other party with no less than two (2) months’ notice of the intended travel (unless circumstances deem that impossible) including location(s) and dates;

    (c)That no less than fourteen (14) days prior to the intended departure the travelling party provide the other party with the travel itinerary including accommodation details and contact details if the regular contact numbers are not available;

    (d)That the travelling party do facilitate telephone or online communication with the other party consistent with the terms of the Order while the children are away; and

    (e)That the children will spend any makeup time with the non-travelling parent at times to be agreed between the parties.

24. That upon the agreement of the parties, they will sign all such documents and do all such things as may be required to enable Y to attend J School.  and Z to attend D School.

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 Hendry & Banister 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 ADELAIDE

FILE NUMBER: ADC 2272 of 2018

Ms Hendry

Applicant

And

Mr Banister

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 15 August 2018 Mr Banister (“the husband”) seeks final parenting orders in respect of X born in 2002, Y born in 2004, W born in 2006 and Z born in 2010 (collectively “the children”) and orders by way of settlement of property.

2. At the time of filing he sought that X live with him and spend time with the wife in accordance with X’s wishes but that Y, W and Z live with the parties on a week about basis.

3. In apparent recognition of the differing contributions of the parties and factors likely to be relevant pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), the husband seeks that the assets of the parties be divided as to 60 per cent to the wife and the balance to the husband. The parties are the directors of Banister Pty Ltd which is the trustee of the Banister Superannuation Fund (“the superannuation fund”). The husband seeks that the separate interests of the parties in the superannuation fund be the subject of a superannuation splitting order that would equalise their member entitlements. Thereafter, the husband seeks that the wife renounce her interest in the superannuation fund and resign as a director and shareholder of the trustee company.

4. By her Response filed 24 September 2018 Ms Hendry (“the wife”) seeks that the parties have equal shared parental responsibility for the children and whilst accepting that X should remain living with his father and spend time with his mother subject to his wishes, Y, W and Z should remain in her primary care and spend time with the husband each alternate weekend from the conclusion of school on Friday until 5.00 pm on the following Sunday and for at least one half of the children’s school holidays.

5. By way of settlement of property the wife seeks that the assets of the parties and their superannuation interests should be adjusted as to 90 per cent to the wife and 10 per cent to the husband.

6. The parties agreed extensive interim orders to apply during the period of the adjournment which provided that they have equal shared parental responsibility for the children, that X live with the husband and spend time with the wife in accordance with his wishes and that Y, W and Z spend time with the husband on each alternate weekend and for one half of the school holidays.

7. The parties were able to agree that the children are able to travel internationally with either parent and that further consideration of the parenting arrangements for the children be considered following a family assessment and report to be undertaken by Ms K.

8. The parties also agreed to attend mediation to explore a resolution of financial issues and during the period of the adjournment the husband agreed to pay all mortgage payments on the property at P Street, Suburb T (“the Suburb T property”), to pay the wife $750 per week with the categorisation of the payment to be further considered.

9. As noted in the order, the wife undertook not to lodge an application with the Child Support Agency for periodic child support.

10. The parties further refined the parenting orders on 13 February 2019 by their agreement that until further order Y would live with the husband during school term each week from the conclusion of school on Thursday until 5.00 pm Sunday and for one half of school holidays.

11. The weekly payment to the wife was reduced from $750 to $600 per week.

12. The proceedings were transferred to the Family Court of Australia and on 2 April 2019 a Registrar’s order provided for the proceedings to be referred to the list of matters awaiting a trial allocation and adjourned the interim proceedings for argument before me.

Background

1. The parties were married in 1998, separated on 5 February 2017 and obtained a divorce order in 2018.

2. The husband is a company director and is in receipt of a significant income. The wife receives a more modest income.

3. The parties disagree as to the extent that they were each involved with the care of the children. The husband asserts that the parties had a joint approach to parenting, whereas the wife considers that the children’s primary care was her sole focus in addition to her support of the husband’s career.

4. It is unlikely that the Court will need to consider the historical involvement of each of the parties with the children. It is conceded that the interests of the children are best served by them maintaining a meaningful relationship with each of the parties.

5. The principal assets of the parties comprise the following:-

   ·The Suburb T property (in the wife’s name)       $1.4 million

   ·Property at E Street, Suburb G (the Suburb G property)             $ 450,000

   ·Furniture of the parties (not known)

   ·Artwork of the parties (estimate)  $  65,000

   ·Shares and investments (husband)   (estimate)  $  22,000

   ·Motor vehicles (wife)   $  18,000

   ·Wife’s jewellery (estimate)  $  60,000

   ·Husband’s watch (estimate)  $    5,000

   Liabilities:-

   ·Rocket Repay loan….317  $ 150,000

   ·Equity Access loan….966  $ 752,510

   ·Rocket Investment loan….545  $ 207,955

   ·Husband’s tax liability (estimate)  $  30,000

   ·Wife’s tax liability (estimate)  $    8,000

   ·Tax liability of L Pty Ltd  $  52,000

6. The parties hold an interest in their superannuation fund of $397,929 of which the wife’s member entitlement stands at about $125,287 as at 30 June 2017.

7. In September 2017 X commenced to live with the husband. He is considered by the wife to be an intelligent, talented but anxious child.

8. There was and remains clear tension between the wife and X. She is candid in her admission that X’s oppositional behaviour in her home caused tension and was confronting.

9. X commenced living with the father and spending time with the wife in mid-September 2017. Following an overdose of sleeping pills in February 2018 X no longer spends time with the wife. Whilst X’s relationship with the husband is very much intact, the same cannot be said for his relationship with the wife.

10. The husband made a decision that X would commence studies at J School. The wife supports the change and she hopes that as he matures and the conflict between the parties lessens, X may be persuaded to reassess his fractured relationship with her.

Wife’s amended application filed 14 May 2019

1. The wife no longer pursues paragraphs 2, 3, 4, 5 and 6 of her amended application.

Suburb T property

1. The wife is the sole registered proprietor of the Suburb T property. It is the security for the Rocket Repay Home Loan …17 and the Equity Access Loan …66.

2. Following separation the wife had occupied the Suburb T property until of relatively recent date she now resides with her partner in Suburb Q. The Suburb T property is now vacant. Hitherto, the parties were not agreed as to the sale of the property and the method and manner by which it should be sold.

3. The husband had initially sought that the wife enter into a Sales Agency Agreement with Ms R of S Real Estate to sell the Suburb T property. Ms R is the husband’s relative.

4. Unbeknown to the husband, but explicable by the wife cohabiting with her current partner, she independently approached Ms V on 17 February 2019 entered into a Sales Agency Agreement for the sale of the Suburb T property by off-market listing with a price range of $1,395,000 to $1,495,000.

5. The Suburb T property is apparently a substantial home in a desirable area. However, the parties acknowledge that the state and condition of the Suburb T property is not to its best advantage. There is broad disagreement as to the extent of the renovations that would be required and the resultant cost of same in order to potentially maximise the potential value of the property up to $1,700,000 as sought by the husband.

6. The husband seeks orders that the parties follow all reasonable recommendations of the agreed agent as to the preparation of the house for sale, sales method, marketing, sales price and any repair or works to be undertaken. The wife contends that whilst acknowledging she has not provided any information to the husband nor sought his consent, the house has been properly presented. She expresses a view that the extent of the repairs and improvements that an agent or the husband might consider would assist in the preparation and sale of the property may well render nugatory any resultant increase in sale price.

7. Other than the assertions of the parties, no other evidence has been presented.

8. I indicated to counsel that whilst I was unlikely to make an order that required the parties to follow the “reasonable recommendations of the agreed agent” I would make an order in terms of paragraph 8 of the husband’s Response filed 15 May 2019, namely:-

   That the parties do share equally in the payment of all agreed costs associated with preparing the house for sale and in the sales, marketing and conveyancing expenses.

9. The husband has now had an opportunity to peruse the Sales Agency Agreement being Exhibit “1” in the proceedings.

10. He has reconsidered his opposition to Ms R being the selling agent and accepts that to cancel her agency at this time would likely result in unnecessary delay and added expense. His application is now limited to him being included in the sale process and that his consent be required before any offer is accepted and contract for sale signed.

11. On that basis, the wife is prepared to consent to orders that would require her to give authority to Ms R to include the husband in all aspects pertaining to the marketing and sale of the property.

12. The husband has not been permitted to re-enter the property during the wife’s occupancy. The locks have been changed and it is likely that communication has passed between the parties wherein the husband has requested an opportunity to inspect the property which has been refused by the wife.

1. Her opposition was at least in part based upon her occupancy of the Suburb T property. That is now no longer a relevant consideration. Whilst the wife is not prepared to allow the husband unfettered access to the property, there is no opposition to the husband entering the property in the company of the agent.

2. Until the husband has inspected the Suburb T property it would be premature to consider a more expansive order if it is not necessary. If upon inspection the husband seeks a greater level of access and can be accommodated in the presence of the agent, I am prepared to list the matter on short notice.

3. Given that the marketing program is well underway, it seems that the husband accepts the reality of the situation and it is unlikely that there is any opportunity for significant repairs or improvements to be undertaken.

4. Accordingly, I am prepared to order:-

   (1)That the wife authorise the sales agent to communicate relevant information in respect of the sale of the Suburb T property to the husband;

   (2)That the wife is restrained from accepting any offer of sale or entering into any further negotiation without consulting with the husband and receiving his written consent;

   (3)That upon the sale of the Suburb T property:-

   (a)That the costs of sale including commission be paid;

   (b)That the Rocket Loan …17 and Equity Loan …66 be discharged noting that the Rocket Loan …45 is secured over the Suburb G property;

   (c)That until further order the balance of the net proceeds of sale be placed into a joint interest bearing account in the joint names of the parties.

Financial statements – Banister Family Trust

1. The wife is the sole Appointor and Trustee of the Banister Family Trust (“the Family Trust”). The Family Trust owns shares in L Pty Ltd which is the entity in which the husband derives income. A dividend is paid to the Family Trust and then subject to the decision of the Trustee of the Family Trust, income is distributed to members of the family in the most tax effective manner.

2. The conflict between the parties has engendered mutual distrust. The wife has to date been reluctant to sign the financial statements and tax returns for 2018. There are concerns as to the extent of the distributions to the adult child of the parties and the wife and the manner in which any tax that may be assessed thereon would be paid.

3. The Trust Deed and any Trustee Resolutions to distributions in the financial year 30 June 2018 were not provided. I am told that a Minute exists which confirms the decision of the Trustee to distribute trust income.

4. The 2018 year has concluded. I am not told that the Trust Deed allows for a retrospective decision as to distribution of trust income to be made. A Minute of the Trustee’s decision as to distribution exists and I propose to order that the parties sign the financial statements and tax returns for the 2018 financial year.

Superannuation fund

1. The husband seeks that the wife follow all reasonable recommendations of the superannuation fund’s advisor as regards to investment or alteration of current investments. The husband and the wife are directors of Banister Pty Ltd which is the Trustee of the superannuation fund.

2. The husband seeks by way of final orders that there be a superannuation splitting order to the effect that the parties’ member balances are equalised. At present there is an imbalance in favour of the husband. In addition, the husband seeks that following a final order the wife renounce her interest in the superannuation fund. The husband intends to retain the superannuation fund structure.

3. The wife does not agree the extent of the husband’s proposed superannuation split, but concedes that whatever is the final determination of her member entitlement, it will be rolled out of the superannuation fund into a fund of her nomination.

4. The parties are not likely to easily reach a consensus as to the future management of the superannuation fund. Moreover, it is untenable for the wife to be the subject of a mandatory injunction that requires her to implement the advice of the superannuation fund’s financial advisor. It is likely that the husband is more financially sophisticated and the financial advisor may well have more regard to the suggestions of the husband as opposed to the wife.

5. That is not to suggest that if any financial advice provided is clearly to the advantages of the parties that they are not able to reach agreement and implement and any investment strategy, but that is a far cry from the wife being compelled to do so.

6. The wife’s counsel submitted that pending final orders, the wife intends to seek a rollover of her member entitlement. There appears sufficient liquid assets of the superannuation fund to give effect to the wife’s election to rollover at least her current member entitlement to a fund of her choosing.

Sale of the Suburb T property and the Suburb G property

1. The husband does not oppose the sale of both Suburb T and the Suburb G properties. The Suburb G property has been on the market for a considerable period of time but without achieving a successful sale. There is no evidence before the Court as to what may be affecting its marketability. The parties consider that at some point the sale price may need to be reduced to promote a sale, but they are content at present to let the present marketing program take its course.

2. The husband seeks that in addition to the payment out of the loans that are secured over the Suburb T and Suburb G properties, the 2018 financial year outstanding tax debts to the Australian Taxation Office on behalf of the husband, the wife, L Pty Ltd and Ms Banister be paid. The balance of proceeds, if any, are to be deposited into a joint interest bearing account pending further order or agreement.

3. The parties have also agreed that they will do all things necessary to seek a moratorium from the mortgage provider as to the continued monthly instalments in circumstances where the properties are both on the market for sale.

4. The maintenance of the mortgage payments is beyond the financial capacity of the wife. It is not in relation to the husband. It is the husband’s superior income that prompted the parties to consider that they would be able to maintain the significant loans secured over the two properties.

5. I am not sure as to the husband’s current ability to maintain the mortgages. At present they are not in arrears. If the husband is unable to maintain the mortgage payments as they fall due, then this will likely inform the Court as to a future sales price for each of the properties that will bring about a prompt sale.

Children’s school

1. At present the four children attend different schools. X attends J School and will continue to do so until the conclusion of his secondary school education.

2. Y attends N School. There are substantial arrears and the wife sought that Y be enrolled in J School for the school term commencing July 2019. Y is currently in year 10.

3. There is the obvious advantage of Y and X attending the same school. It is also likely that the fee structure at J School is significantly less than the tuition fees as levied by N School.

4. Y is currently content at N School but remains open to a move.

5. The determining factor is the ability of the parties to pay the tuition and other fees.

6. The husband has apparently entered into a repayment scheme with the bursar of N School and it appears that his placement is secure for the balance of 2019.

7. It is a matter for the husband as to whether he can manage the outstanding and future tuition fees for Y.

8. The wife does not press for a change at this time.

9. W currently attends D School and Z attends F School. The obvious difficulty is that the parties no longer live in the C Region. The distance between their separate residences at Suburb Q and Suburb O is significant. The wife considers that Z should be enrolled at D School. Hitherto, the husband has resisted taking that step, but now considers that there may be an advantage to Z in changing schools subject to her enrolment being accepted in D School and to ensure that any move will not unnecessarily disadvantage or distress her.

Parenting considerations

1. The parties agree that they should have equal shared parental responsibility for the children.

2. The wife does not seek orders in respect of X and he will continue to live with the husband spend time with the wife in accordance with his wishes.

3. The orders of 13 February 2019 provided that until further order Y would live with his father for three nights per week and his mother for four nights per week.

4. The parties do not seek to vary the parenting arrangements for Y.

5. The focus is on W and Z. Pursuant to the current order they spend time with their father each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday and for one half of the April 2019 school holidays. I propose to apply the holiday arrangements between the parties for April 2019 to all school holidays namely, that they be shared equally.

6. The husband seeks to extend his time with W and Z from the conclusion of school on Friday to the commencement of school Monday and in each alternate week thereafter. That extension of time is opposed.

7. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

8. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim orders until and unless the evidence has been tested. At an interim hearing a Court should be risk-averse and cautious.

9. The applications of the parties must be considered pursuant to s 60B of the Act which outlines the objects and principles underlying pt VII.

10. Section 60CA requires that in deciding to make a particular parenting order the best interests of the children are the paramount consideration. In order to determine what is in the children’s best interests the Court must consider the provisions of s 60CC as to any primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

11. I am not being asked to undertake an assessment of risk. Neither party disputes that the interests of these children will be but otherwise served by them maintaining a meaningful relationship with each of the parties. Whilst there is a difference of opinion as to the extent of the husband’s involvement with the children, to a significant degree those considerations are of little moment when it is acknowledged that X lives with his father and spends no time with his mother, Y shares his time between the parties and Z and W have been spending regular time with their father including half school holidays.

12. It is not insignificant that the parties have agreed the children are to travel internationally with either of them.

13. The current orders for W and Z were to apply only during the period of the adjournment. That was to enable a family assessment to be undertaken by Ms K.

Family report

1. In her report dated 28 January 2018, the  Ms K made the following observations at page 18:-

   Observed interaction indicated that the 3 younger children all related well to both parents, and [the wife] and [the husband] were responsive and appropriate at all times. During the observation with [the wife] when [X] was present, [X] did not interact verbally or non-verbally with anyone and [the wife] did not initiate any conversation with [X]. With the exception of [X’s] and [the wife’s] relationship, the impression was that the children have warm and loving relationships with each of their parents.

2. Ms K recorded that:-

   [Z] was positive about her siblings, and [W] told me he missed and wanted to see [X] more. [Y] did not offer any comments on this topic and I omitted asking him about this. [X] also told me that he wants to see his brothers and sisters more. I note that the impression during the observed interaction was that all of the children get on well with each other and there are no particular problems in this area, and in any event and consistent with this, neither of the parents mentioned any major issues between the siblings.

3. Ms K considered whether the children would be advantaged to moving to equal time and shared care. She did not consider that this would be the best pathway at present and importantly, it did not reflect the children’s preferences.

4. There was some uncertainty as to the level of understanding by W and Z as to the various options and the advantages that might flow.

5. Z’s first preference was to keep the current arrangements as they are, but in the alternative would be happy for a week about arrangement. W’s first preference was to extend the current arrangement of two nights with his father to a four night block. He spoke against a week about arrangement.

6. The children were more concerned as to the level of disruption that they experience by changing between the parties separate households. W in particular highlighted that it is difficult for him to move his musical instruments consisting of a cello, double bass and trumpet between households and school. They are cumbersome.

7. Ultimately, Ms K found W and Z to be well-adjusted and would likely cope with either an extension of their time with their father, or if not then the current arrangements to remain.

8. There is no obvious easy answer in terms of what arrangement is best likely to advantage the children. In circumstances where W and Z are to some degree ambivalent as to the extent of time that they would spend with the husband, I propose to extend their time by one night with it to increase by a further night in four months’ time. An increase will enable the children to spend more time with X and provide a graduated but certain pathway to four nights a fortnight.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 May 2019.

Associate:

Date: 23 May 2019