KARLLSSON & KARLLSSON

[2016] FamCA 700

FAMILY COURT OF AUSTRALIA

KARLLSSON & KARLLSSON [2016] FamCA 700

FAMILY LAW – CHILDREN – interim orders – where the husband seeks orders for time with the children and an updated family report – where the application is opposed by the wife – where consideration is given to the best interests of the children – where orders are made for holiday time – where further consideration of a report is adjourned.

FAMILY LAW – PROPERTY – interim orders – where the wife seeks an order for interim property settlement, litigation funding and lump sum spousal maintenance – where the application is opposed by the husband – where the husband asserts the wife’s expenses are not reasonable – where the Court considers it just and equitable to make an order in favour of the wife for interim property settlement – where the sum is to be paid by the husband gradually – where the funds are to be categorised by the trial judge.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) s 60CC, 74, 79, 80

Goode & Goode (2006) FLC 93-286
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT: Ms Karllsson

RESPONDENT: Mr Karllsson

FILE NUMBER: ADC 43 of 2013

DATE DELIVERED: 23 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Justice Dawe

HEARING DATE: 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld, QC

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Solicitors

COUNSEL FOR THE RESPONDENT: Mr North, SC
(with Mr Nehmy)

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. Within twenty-one [21] days the husband pay to the wife’s solicitor’s trust account the sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] within a further twenty-one [21] days the sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] and within a further twenty-one [21] days the final sum of TWO HUNDRED AND FIFTY THOUSAND DOLLARS [$250,000.00] (totalling SIX HUNDRED AND FIFTY THOUSAND DOLLARS [$650,000.00]) on account of the wife’s outstanding and estimated future legal costs and disbursements in relation to these proceedings UPON NOTING that such payment be by way of interim property settlement but subject to any adjustment or variation by the trial Judge.

2. The husband provide the following to the wife by way of ongoing discovery:

   (a)copies of any valuations of the property known as XX Retail Centre in Queensland and held equally by PX Trust and an entity controlled by Mr CC in partnership as the XX Joint Venture.

   (b)copies of Income Distribution Minutes for the 2015 financial year for the Karllsson Family Trust and the P Family Trust.

3. UPON CONDITION that the valuations not commence until a Judge or Registrar notifies the parties that a date has been set for the final hearing:

   (a)the parties jointly instruct JJ Real Estate Agents to provide an updated valuation of the husband’s interest at Suburb LL, South Australia and that the husband provide the valuer with access to the property for that purpose the husband bearing the cost of the updated valuation at first instance;

   (b)the parties jointly instruct JJ Real Estate Agents to provide an updated valuation of the property at Suburb OO, South Australia at the husband’s cost at first instance.

4. Further consideration of paragraph 11 of the Application in a Case filed by the wife on 5 April 2016 is adjourned to the date of directions by the trial Judge.

5. The husband pay the cost of ongoing consultation by the parties with Mr D.

6. The orders of 2 December 2014 are continued.

7. The father spend time with the children during the school holidays and special occasions at times arranged with the assistance of Mr D at the cost of the husband.

8. In default of agreement being reached with Mr D in relation to school holiday arrangements for 2016, the following apply:

   (8.1)for the September/October 2016 school holidays (commencing 30 September and concluding 16 October 2016)

   (8.1.1)the children live with the husband for seven [7] nights from the conclusion of school on Friday 30 September 2016 to 3.00 pm on Friday 7 October 2016;

   (8.1.2)the children live with the wife for seven [7] nights from 3.00 pm on Friday 7 October 2016 to 3.00 pm on Friday 14 October 2016;

   (8.1.3)the children live with the husband for three [3] nights from 3.00 pm on Friday 14 October 2016 to the commencement of school on Monday 17 October 2016 to maintain the school term weekend rotation.

   (8.2)for the December 2016/January 2017 long school holidays (commencing Wednesday 7 December and concluding 31 January 2017), the children live with the parties on an equal basis, adopting Mr D’s calendar which schedules parenting arrangements up to 26 December 2016 as follows:

   (8.2.1)the children live with the wife for eight [8] nights from the conclusion of school on Wednesday 7 December 2016 until 3.00 pm on Thursday 15 December 2016;

   (8.2.2)the children live with the husband for nine [9] nights from 3.00 pm on Thursday 15 December 2016 to 3.00 pm on Saturday 24 December 2016;

   (8.2.3)the children spend time with the wife for one [1] night for Christmas from 3.00 pm on Saturday 24 December 2016 to 11.00 am on Sunday 25 December 2016;

   (8.2.4)the children live with the husband for ten [10] nights (including time for Christmas) from 11.00 am on Sunday 25 December 2016 to 3.00 pm on Wednesday 4 January 2017;

   (8.2.5)the children live with the wife for ten [10] nights from 3.00 pm on Wednesday 4 January 2017 to 3.00 pm on Saturday 14 January 2017;

   (8.2.6)the children live with the husband for nine [9] nights from 3.00 pm on Saturday 14 January 2017 to 3.00 pm on Monday 23 January 2017.

   (8.2.7)the children live with the wife for nine [9] nights from 3.00 pm Monday 23 January 2017 to the commencement of the new school year on Wednesday 1 February 2017.

9. Paragraph 11 of the orders made on 2 December 2014 is varied to change the name of the children’s dentist from Dr S to Dr TT.

10. Further consideration of any updated report from Mr D is adjourned to the directions hearing by the trial Judge.

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 Karllsson & Karllsson 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 43  of 2013

Ms Karllsson

Applicant

And

Mr Karllsson

Respondent

REASONS FOR JUDGMENT

Introduction

1. In proceedings concerning both the financial matters and children’s issues which commenced in 2013, the wife sought interim orders in relation to financial matters.  The husband also sought orders dealing with financial matters and children’s issues.

2. There was an interim hearing of these matters on 4 May 2016 before me.

Applications and orders sought

1. By Application in a Case filed on 5 April 2016 (document 77) the wife sought detailed interim orders.  These included paragraphs 1 and 2:

   Litigation Funding

   1.That within 14 days of this order the husband pay to the wife’s solicitor’s trust account the sum of $620,000 on account of the wife’s outstanding and estimated future legal, counsel and professional fees relating to this matter and that such payment be characterised by the trial Judge.

   Interim financial provision

   2.That within 14 days of this order the husband pay to the trust account of Norman Waterhouse Lawyers on behalf of the wife the sum of $850,000 by way of further interim financial provision and that such payment be characterised by the trial Judge.

2. Other orders sought are set out in that application which included detailed orders for discovery, valuations and further payment by the husband to the wife of detailed sums as set out in paragraph 12.

3. In an Application in a Case filed by the husband on 6 April 2016 (document 80) the husband sought interim orders in relation to children’s issues, including orders relating to Mr D preparing an updated report providing his recommendations concerning the welfare of the children.  The application also sought the continuation of some of the interim orders made in December 2014, the discharge of paragraphs 5.3 and 9 of the 2014 orders and specific arrangements for the children to live with the father during school terms, school holidays and special occasions.

4. In Response to the Application in a Case (document 82) the husband sought the dismissal of the wife’s application and further sought orders which characterised the payments made by him pursuant to paragraph 10(c) of the orders of 8 March 2013 as non-periodic child support “pursuant to s 123 and s 124 of the Child Support (Assessment) Act 1989” and an order that those payments reduce the annual rate of child support by 100 per cent.

5. By Response to the Application in a Case (document 84) the wife sought specific orders continuing the order of 2 December 2014 and other orders which provided for the parties to make arrangements for school holidays and special occasions with the assistance of Mr D at the husband’s cost and specified particular dates and times if the matter could not be agreed.

6. At the interim hearing before me the parties relied upon the affidavits filed in support of the various applications.

7. Counsel also provided the Court with Outlines of Case/Written Submissions.

Hearing

1. At the interim hearing before me on 4 May 2016 the applicant wife was represented by Mr Bartfeld, QC.  The respondent husband was represented by Mr North, SC.

2. At the interim hearing before me it was conceded that paragraph 4 of the Application in a Case filed by the wife on 5 April 2016 (document 77) which sought the sale of Suburb VP, (“VP property”) was not now being pressed. It was also conceded that paragraph 3 (which referred to interest accruing in default of payment in accordance with an order) was already covered by the provisions of the Family Law Act 1975 (Cth) (“Act”) and rules. It was also conceded by the wife’s counsel that orders sought in paragraphs 5 and 6 (relating to home and contents insurance) were not being pressed.

3. During submissions of Senior Counsel for the husband notations were made which covered the orders sought by the wife in paragraphs 7.1 to 7.5 inclusive.

The Law

1. The parties agreed that the provisions of s 79 of the Act need to be considered in this application for interim property settlement orders. The Court also takes into account the Full Court’s decision of Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.

2. The provisions of s 80 of the Act give the Court power to make the interim property settlement orders (after considering the necessary factors in s 79).

3. There was no dispute concerning the Court’s powers to make the orders for interim property settlement or declarations in relation to the child support.

4. It was not disputed that the Court has the power to make orders in relation to the time the husband spends with the children and other parenting matters on an interim basis pursuant to the provisions of Part VII of the Act taking into account (as is required) that the children’s best interest is the paramount consideration.

5. The Full Court of the Family Court of Australia in the decision of Goode v Goode (2006) FLC 93-286 set out the steps the Court should take when deciding the best interests of the children on an interim basis.

Background

1. Proceedings commenced when the wife filed an Initiating Application in January 2013.

2. The husband was born in 1963 and is now aged 53.  The wife was born in 1967 and is now aged 49.  The parties commenced cohabitation in September 2000 and were married in 2006.

3. There are two children of the marriage B born in 2007 (now aged nine) and C born in 2010 (now aged six) (“the children”).

4. The parties separated in September 2010.

5. Since the commencement of the proceedings in January 2013 there have been numerous applications and interim hearings.  Previous matters have included orders for spouse maintenance, lump sum payments and interim property settlement orders.  These included the orders which were made on 15 July 2014.  By consent, the husband was ordered to pay the wife partial property settlement in the sum of $650,000.  Orders were also made varying the spouse maintenance order.  One of the notations made on the consent order was that until further order the husband would pay child support as assessed and would not apply to review or depart from the assessment and that such order was without prejudice to the wife’s entitlement to make further application for partial property settlement.

6. Various interim orders have also been made concerning the children.  In particular orders have been made on 21 June 2013, 15 July 2014 and 2 December 2014.

7. Previous orders have also made specific directions in relation to the assistance the parties and the children receive from Mr D.

8. Very detailed and specific orders have been made which provide for the parties to have equal shared parental responsibility, sole responsibility for day to day decisions affecting the children’s care, welfare and development during the time the children are living with each parent and specific times for the children to live with each of the parents.  These orders provided that after the commencement of term 4, 2015 the children are to spend time with the husband and live with the husband for five nights a fortnight being from after school Thursday until the following Monday in week 1 and from after school Thursday until the following Friday in week 2.

Discussion and findings

1. The wife seeks orders by way of litigation funding ($620,000) and interim financial provision ($850,000) both on the basis that the payments be categorised by the trial Judge.

2. Both parties refer to the interim financial provision orders which have been previously made providing the wife with a total of $1.02 million.

3. The wife has also received the benefit of orders made which provided for the husband to pay her $8,000 per month spousal maintenance and other expenses.

4. The husband refers to the child support ($2,130 per month), school fees and other expenses such as motor vehicle expenses and holiday expenses which he has paid.

5. On behalf of the wife it is maintained that the issues in relation to property settlement and children’s matters are complex. 

6. The wife’s affidavit material refers to the funds which have been already allocated to her being significantly depleted, meeting legal costs and living expenses.  The wife claims that these expenses included expenses for which the husband was responsible pursuant to earlier orders made in 2013.

7. Paragraphs 87 to 108 of her affidavit detail these expenses which are asserted to be approximately $120,000 paid by her, rather than the husband, from the monies she received on 15 July 2014.  The husband, however, only concedes the sum of $32,081.03.

8. Appropriately on behalf of the wife it is submitted that the characterisation of the expenses as “reasonable” is not capable of resolution on the papers alone and would be an issue to be determined (if necessary) by the trial Judge.

9. The affidavit of the wife’s solicitor (Ms Miller) filed on 5 April 2016 details the legal fees and costs currently owing by the wife at $225,383 and estimated future legal costs of $360,000.  (Total $585,383).

10. The wife also seeks significant amounts in relation to expenses for maintaining the VP property and her general living expenses, which are set out in substantial detail in her affidavit filed on 5 April 2016.  The husband does not agree to the payments of these sums, nor does he accept all of the evidence alleged by the wife.

11. The husband opposes any further payment to the wife.  On his behalf it is maintained that the legal fees outstanding are $225,000 and the wife’s estimated future costs are $360,000 (which would be a total of $585,000) not $620,000 as sought by the wife. 

12. The husband also opposes the further payment of any sum to the wife by way of “lump sum spousal maintenance” referring to the monies the wife has already received, the $8,000 per month of periodic spousal maintenance and $2,130 per month of child support.

13. There are also orders in place which provided for the husband to pay all “reasonable” expenses relating to the wife’s home, including council and water rates, usage charges and home and contents insurance, private school fees, associated school costs and private health cover for the wife and children, out of pocket medical expenses, motor vehicle expenses and “agreed” holiday expenses for the wife and children.

14. The husband in his affidavit filed on 29 April 2016 estimates that the total expenses paid on behalf of the wife are approximately $18,000 per month.

15. On behalf of the husband it is also asserted that the wife has failed to identify a source from which the interim property settlement funds can be paid.  The wife however sets out in her affidavit the substantial value of the business interests of the husband.

16. In the wife’s affidavit she also sets out the income she is currently receiving as a professional working part-time on a “consultancy basis”.  She refers to working mainly from home when the children are not in her care or at night when they are asleep.  (Paragraph 106.1 of the wife’s affidavit).

17. On behalf of the husband it is argued that the wife’s estimated monthly expenses are not reasonable. 

18. Without testing the evidence of both the husband and wife, and taking into account the standard of living which would be appropriate for the parties, the Court is not yet in a position to determine numerous factors.

19. It is however clear that there are be substantial costs which have been incurred in these proceedings and are likely to be incurred in these proceedings if the parties are unable to resolve the many issues outstanding.

20. The law in relation to interim property settlement payments has been dealt with in detail, and in particular in the Full Court decision of Strahan & Strahan (supra). The provisions of s 74, s 79 and s 80 of the Act provide the Court with the power to make an interim order.

21. There was no disagreement in relation to the source of power, nor the factors which need to be considered.

22. It is possible for the Court to make more than one interim financial provision provided that the relevant factors are considered.

23. The evidence currently before the Court, which is not disputed by the husband, indicates that he controls a substantial business.

24. The length of the relationship of the parties, the previous high level lifestyle and the monies already received by the wife are significant factors.  It is also a significant factor that the husband continues to have the control of the business and the wife continues to have a much more limited income and her share of the care of the children.

25. Considering all of the factors in s 79 and s 74 I am satisfied that it is just and equitable to make a further order for payment of a sum to the wife by the husband to enable her to continue to be represented in these proceedings. Although there is a discrepancy in relation to the amount sought by the wife to cover the already incurred expenses and the anticipated future expenses, I am satisfied that the sum of $620,000 sought by the wife is appropriate, just and equitable in the circumstances.

26. The wife sought an order that the payment be made within 14 days.

27. The submissions on behalf of the husband were that these be staged payments through to the last payment being in January 2017.  That is not reasonable taking into account the possible listing of the matter for trial.

28. The order will therefore be that the husband pay to the wife’s solicitor’s trust account the sum of $200,000 within 21 days, the further $200,000 within another 21 days with the final $250,000 being paid within 21 days after that.  The payments are to be used for the wife’s outstanding and estimated future legal costs and disbursements in relation to these proceedings. 

1. I further order that such payment be by way of interim property settlement on the basis that the trial Judge may make any appropriate adjustment or variation to the category.

2. The orders which the wife sought by the way of “interim financial provision” in the sum of $850,000 could be categorised as lump sum spousal maintenance.  There is already in existence a spouse maintenance order.  The wife is also receiving income from her employment or contract as a professional.  Taking into account the existing orders for spousal maintenance, child support and orders for payment by the husband of other expenses, I am not satisfied that she has established that on an interim basis the further orders sought by the wife are appropriate, either as interim spousal maintenance or further lump sum provision.

3. Paragraph 2 of the orders of the application of the wife filed on 5 April 2016 is therefore dismissed.

4. Paragraph 3 of the application dealt with interest payable on default. It was conceded that the order is not necessary as the rules clearly provide for the interest to be paid.

5. At the hearing before me as previously indicated, the orders sought in paragraphs 4, 5 and 6 of the application were not pursued.

6. Paragraph 7 of the Application in a Case filed by the wife on 5 April 2016 seeks numerous and detailed orders in relation to discovery by the husband.  The husband opposes those orders and claims to have made full and frank disclosure.  He has also argued that the wife’s applications “lacks specificity” and either seeks documents which are not in the husband’s control (a trust he claims is controlled by his mother) or are irrelevant.

7. At the hearing before me on 4 May 2016 counsel for the husband indicated that the husband would provide to the wife’s solicitors full details of his legal counsel and professional fees associated with the proceedings, including the source of payment, with such information to be provided by 16 May 2016.  That was noted on the transcript.  That therefore deals with paragraph 7.1 of the wife’s application.

8. Similarly, in relation to paragraph 7.2 it was noted that the husband agreed to comply with details of costs in relation to renovations and that was noted to take place by 1 June 2016.

9. Paragraph 7.3 concerned insurance policy over the property at Suburb VP since the separation of the parties in 2010.  After discussion with counsel it was noted that the husband would comply with paragraph 7.3 by 1 June 2016.

10. It was further noted that the husband would comply with paragraphs 7.4 and 7.5 by 1 June 2016.

11. Paragraphs 7.6 to 7.9 related to trusts and the discovery of documents in relation to trusts which the husband maintained that he did not control.  It was maintained that the documents were not within the husband’s possession or power and that he had only a limited association with the entities.

12. Paragraph 7.6 of the orders sought are as follows:

    7.6Copies of any valuations of the property known as [the XX Retail Centre in Queensland] and held equally by [PX] Trust and an entity controlled by Mr [CC] in partnership as the [XX] Joint Venture.

13. If the husband has any of these documents in his possession I accept that they may be relevant to ascertain the possible financial resource of the husband as a likely beneficiary of the trust.  An order in terms of 7.6 is therefore appropriate.

14. Paragraphs 7.7 and 7.8 state:

    7.7Copies of all correspondence, file notes, records of conversation, emails and documents which explain the process by which the draft Income Distribution Minute for the [P] Family Trust for the 2012 financial year was amended between 13 June 2012 when it was emailed to the husband by the husband’s accountant and 25 June 2012 when it was signed by the husband’s mother.

    7.8Copies of all correspondence, file notes, records of conversation, emails and documents which explain the process by which the draft Income Distribution Minute for the [PX] Trust for the 2012 financial year was amended to provide for the husband’s mother’s trust to receive 100% of the income of the [PX] Trust in lieu of the husband.

15. The words “which explain the process” are not words which should be used in describing documents to be provided.  If a full explanation is necessary for the amendment, then such evidence will either be given by the relevant trustees at the request of the wife or they may be the subject of appropriate subpoenas if necessary.

16. As to paragraph 7.9 if the husband is a beneficiary, or has these documents in his possession, power or control, they should be disclosed.  If he does not have them or is not entitled to receive them he can provide that explanation.  I therefore make the order in terms of paragraph 7.9.

17. Paragraph 7.10 states:

    That the husband provide in a timely way such other documents and / or information relevant to any financial issue in these proceedings as may be requested by or on behalf of the wife.

18. The husband is under an obligation pursuant to the rules and the decided judgments to provide all relevant documents.  It is not necessary to make the order as sought.

19. The wife sought specific orders in relation to updated valuations (paragraphs 8 to 11 of the wife’s Application in a Case filed on 5 April 2016). 

20. The husband did not oppose the orders sought for the updated valuations, but sought that the same be delayed until closer to the final hearing.  He opposed the valuation of the retail centre in Queensland on the basis that it was a property owned by his mother’s trust and a trust controlled by another person.  He maintained that he had no interest in the property.

21. The parties have already spent a substantial amount of money on legal fees and valuations for these proceedings.  Counsel for the wife conceded that there will be “some force” in the submission on behalf of the husband that the valuations should be obtained closer to the trial, but sought to have the valuations completed for the conciliation conference which was due to take place on 15 June 2016.  It was unlikely that this would have been undertaken and completed within that time.

22. This matter is in the trial list and has been awaiting an allocated trial date for some months.

23. I propose to make an order that the orders sought in paragraphs 8 and 10 of the application are made on the basis that the valuations not commence until a Judge or Registrar notifies the parties that a date has been set for the final hearing.

24. Further consideration of paragraph 11 is adjourned to the date of directions by trial Judge.  It is anticipated that the parties should be able to determine themselves whether such updated valuations are required.

25. As to paragraph 9 the wife has failed to establish at this stage that the value of the property referred to as “XX Retail Centre” is necessary.  The husband maintains that he has no interest in the entity controlled by his mother which owns the property.

26. Similarly, the provision of an updated report by Mr D should be considered when the trial date is known.

27. Paragraph 12 of the Application in a Case filed by the wife on 5 April 2016 sought detailed orders in relation to payment of expenses by the husband.  Some related to the VP property.  Those that relate to the sale of the VP property are not relevant at the moment. 

28. Paragraph 12.3 seeks that the husband pay the costs of the ongoing consultation by the parties with Mr D. 

29. In relation to paragraphs 12.4 and 12.5 the husband maintained that he sought access to the VP property to have an independent assessment carried out to determine if the works were necessary.  He otherwise maintained that the wife was able to meet the other expenses from the payments he is currently making on her behalf, which he asserted to be approximately $18,000 per month.

30. On an interim basis the material currently before the Court does not establish the basis upon which the orders should be made, save and except, that I am satisfied that it is appropriate in these circumstances for the husband to be responsible for the ongoing cost of consultation by the parties with Mr D in relation to children’s issues.

31. I therefore dismiss paragraph 12, save and except, that it will be noted that the husband will be responsible for the ongoing consultation by both parties with Mr D.

32. In the Application in a Case filed by the husband on 6 April 2016 he sought detailed interim orders in relation to the children of the parties.  There were detailed specific orders sought in relation to the time the children live with the husband during school terms, school holidays and special occasions.  The orders sought to maintain some of the orders of 2 December 2014, with variations and others to be discharged.

33. The husband is also seeking orders which provide for the children to spend the equivalent of seven nights each fortnight during school terms and for one half of all school holidays.

34. The husband also sought orders that provided for the parties to jointly engage Mr D, “to forthwith prepare an updated family report”.

35. There are specific orders being sought in relation to the type of report to be prepared by Mr Papaleo. 

36. The wife opposes these orders and seeks to maintain the orders which were made in December 2014 pending final orders, save as otherwise agreed by the parties. 

37. In the wife’s Response to an Application in a Case filed on 30 April 2016 the wife sought that the husband’s Application in a Case filed on 6 April 2016 be dismissed and that the “order made on 2 December 2014 remain in force”.  She then set out orders sought in relation to school holidays not covered in that order.  She seeks that the parties continue to make arrangements for the school holidays and special occasions with the assistance of Mr D, psychologist at the husband’s costs and thereafter set out orders sought in default of agreement being reached with Mr D.

38. There were detailed and specific orders sought providing for the children to spend substantial time with the husband during the short school holidays for up to seven nights at a time and during the December/January school holidays for up to 10 nights at a time with specific details setting out dates.

39. Orders that were made on 2 December 2014 provided primarily that the children live with the husband for five nights in each fortnight during school terms.  The arrangements were such that the children live with the husband in week one from the conclusion of school Thursday until the conclusion of school Monday and in week two from the conclusion of school Thursday until the conclusion of school on Friday.

40. The husband maintains that these orders are now redundant. 

41. A considerable amount of the submissions on behalf of the husband related to the role that Mr D has played and the difficulties the parties have had in reaching agreement about the terms of review by Mr D.

42. In seeking the extended arrangements such that the children live with him for seven nights in each fortnight, it was maintained on behalf of the husband that the children have “increased in maturity” and the time which has passed since the arrangements were put in place.

43. The wife opposes the change to the orders in existence.

44. Clearly, the provisions of Part VII of the Act are to be considered, even on an interim basis. The authority of Goode & Goode (supra) makes it clear that this is necessary.

45. The difficulty in this case is the ongoing disagreement between the parents of the children about what is in their best interests.

46. The Court has had the benefit of the reports of Mr D which have made suggestions for ongoing future arrangements taking into account what is in the best interests of the children.

47. When considering this on an interim basis the best interests of the children are still the paramount consideration.  It is also necessary to give considerable weight to the primary factors, one of which is to consider the benefit the children are having a meaningful relationship with both of their parents.  The other is of course, the need to protect the children from abuse.  In this case the risk of abuse relates to the disruption of the children’s living arrangements and possible further emotional and psychological harm.

48. I have taken into account the ages of the children and the fact that the litigation has been ongoing concerning them for some time.  Mr D’s reports and assistance have been of benefit to the children.  This is recognised by both of the parents.

49. I take into account that the matter is high in the list of matters awaiting trial and that there is therefore a risk of further changes occurring in the not too distant future.

50. I consider that the risk of disruption to the children who have settled into their current arrangements is a significant factor when determining what is in their best interests.  I therefore do not consider that any changes in the orders relating to the children during term time are appropriate. 

51. The wife’s proposals concerning school holidays and special occasions being agreed with the assistance of Mr D at the husband’s cost pending the trial are the most appropriate.  If such an agreement cannot be reached the trial Judge will take into account the issues and factors which prevented agreement and suitable orders in the best interests of the children will be made.

52. The default orders proposed by the wife provide the children with suitable time with the husband pending the trial Judge’s trial orders.

53. I note that the wife consents to an order which varies the orders made on 2 December 2014 to change the name of the children’s dentist from Dr S to Dr TT.

54. In the Response to an Application in a Case filed by the husband on 29 April 2016 the husband sought orders as follows:

    1.That the Wife’s Application in a Case filed 5 April, 2016 be dismissed.

    2.That the payments for which the Husband is responsible pursuant to paragraph 10(c) of the Orders made on 8 March 2013 be and hereby characterised as non-periodic child support pursuant to section 123 and 124 of the Child Support (Assessment) Act 1989 (“the non-periodic child support payments”).

    3.That pursuant to s.125 of the Child Support (Assessment) Act 1989, the non-periodic child support payments made by the Husband are to reduce the annual rate of child support payable by the Husband, pursuant to any administrative assessment that may issue from time to time, by 100%.

    4.That the Wife pay all costs of and in relation to the Husband’s Response to her Application in a Case.

    5.Such other and/or further order or direction as this Honourable Court deems appropriate.

55. The orders for which the husband was responsible pursuant to paragraph 10(c) of 8 March 2013 provide for the husband to meet certain expenses on behalf of the children.

56. The husband also seeks that these non-periodic child support payments should reduce the annual rate of child support payable by the husband pursuant to the administrative assessment by 100 per cent.  This would remove the sum of $2,130 per month which the husband is currently assessed to pay for the children.  The payment by the husband of child support and the expenses for the children, were matters that were taken into account when the orders were made on 15 July 2014.

57. At this interim stage I am not satisfied that it is just and equitable or otherwise proper for orders to be made now which would reduce the payments the husband makes either pursuant to the Child Support (Assessment) Act 1989 (Cth) or the previous consent orders.

58. These are matters which, if necessary, the trial Judge can consider and thereafter make appropriate adjustments.

59. I therefore dismiss the husband’s Response to an Application in a Case filed on 29 April 2016.

60. As to the question of costs counsel and solicitors should take into account that neither party has been wholly unsuccessful in the matters heard by me on 4 May 2016.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 August 2016.

Associate: 

Date:  23 August 2016