Kent and Kent - [2007] FMCAfam 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENT & KENT

[2007] FMCAfam 222

FAMILY LAW – Property – whether or not an order should be made for the payment of costs on an interim basis – payment of school fees on behalf of the children of the marriage – time the father spends with the children – spousal maintenance – wife out of work for a considerable period of time despite tertiary qualifications – wife employed below her skill level – time to regenerate lost skills.

Family Law Act 1975, ss.60CC, 61DA(2), 65DA, 72, 117

Applicant:

MS KENT

Respondent:

MR KENT

File Number:

BRC 746 of 2007

Judgment of:

Burnett FM

Hearing date:

5 March 2007

Date of Last Submission:

5 March 2007

Delivered at:

Brisbane

Delivered on:

5 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr Galloway

Solicitors for the Applicant:

Jones Mitchell Lawyers

Solicitors for the Respondent:

Barry & Nilsson

ORDERS

That as and by way of partial property settlement each of the Applicant and Respondent do within 6 weeks from the date of these Orders sign all documents and do all things necessary to cause the whole of the Respondent’s right, title and interest in the former matrimonial home situated at Property C in the State of Queensland and more particularly described as Lot [omitted] (Title Reference [omitted]) to be transferred to the Applicant.
That in consideration of the Respondent’s transfer referred to in Order 1 above, the Applicant do:
(a)cause the first mortgage registered upon the title to the said Property C property in favour of National Australia Bank (to the extent of approximately $420,000) to be wholly paid and discharged;
(b)cause the second mortgage registered upon the title to the said Property C property in favour of National Australia Bank (to the extent of approximately $95,000) to be wholly paid and discharged; and
(c)cause the balance in the sum of $X where “X” is calculated as follows:
A – (B + C) and,
A = $775,000
B = the actual mortgage amount referred to in Order 2(a)
above
C = the actual mortgage amount referred to in Order 2(b)
above
to be paid into the trust account of the Applicant’s Lawyers Jones Mitchell to be held and retained on trust for the parties pending further agreement in writing between them or Order of this Court including Order 8 below.
That for the purposes of and to facilitate Orders 2(a) and (b) above, the Respondent do promptly sign all necessary documents including requests to release mortgages as requested by the Applicant.
That the Applicant be solely responsible for all costs of and incidental to the transfer referred to in Order 1 above including document preparation; stamp duty; registration fees and the like.

IT IS ORDERED BY CONSENT AND UNTIL FURTHER ORDER:

That the Respondent continue to pay for the treatment of the child, [X]’s dyslexia and the child, [Y]’s speech therapy.

IT IS FURTHER ORDERED BY THE COURT UNTIL FUTHER ORDER:

That within 28 days from the date of these Orders the Respondent do cause the sum of $25,000 to be withdrawn from St. George Bank in the name of [D] CONSULTING Account No. [omitted] to be paid to the Applicant and that, from the sum to be paid into the Trust Account of Jones Mitchell, Lawyers pursuant to Order 2(c) hereof, and within six weeks of today, there be restored to the husband, in the name of [D] Consulting, the sum of $25,000.
That the characterisation of the payment of the said $25,000 as either interim costs, property settlement or spousal maintenance be left to the determination of the Trial Judge.
That the Respondent continue to pay the school fees:
(a)for the child [X] to attend [C] School;
(b)for the child [Y] to attend [S] School;
(c)for the child [Z] to attend pre-prep at [S] School.
That the Respondent pay to the Applicant as and by way of spousal maintenance and by automatic bank transfer, the sum of $2,500 per month into such account as the wife nominates, the first such payment to be made on or before 15 March 2007 and monthly thereafter.
That the Respondent continue to pay:
(a)the mortgage payments in favour of National Australia Bank secured by mortgage registered upon the title to the parties’ property at Property R in the State of Queensland in accordance with the terms of the said mortgage;
(b)up to and including the date the said Property C property is transferred to the Applicant in accordance with Order 1 above, both:
(i)The first mortgage in favour of the National Australia Bank registered upon the title to the said Property C property aforesaid; and;
(ii)The second mortgage in favour of the National Australia Bank registered upon the title to the said Property C property aforesaid,
in accordance with the terms of each mortgage respectively;
(c)the lease debt in favour of Toyota Finance in respect of the Applicant’s Toyota Land Cruiser motor vehicle, all such payments to be in accordance with the terms of the lease,
and the Respondent do indemnify the Applicant and hold her indemnified accordingly.
That the said children of the marriage, [X] born in 1999 [Y] born in 2000 and [X] born in 2002, live with the Applicant.
That the said children of the marriage spend time with the Respondent at all such times as the parties agree but failing agreement then each alternate week from after school on Wednesday until the commencement of school on Monday and fortnightly thereafter.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 746 of 2007

MS KENT

Applicant

And

MR KENT

Respondent

REASONS FOR JUDGMENT

In this application the applicant, by her amended application filed 28 February 2007, seeks various interim orders.
At the outset, following discussion with counsel, it appeared that the issues to be resolved this afternoon fell into the following: first, a question of whether or not an order should be made for the payment of costs on an interim basis; secondly, an order concerning the payment of school fees on behalf of the children of the marriage; thirdly, a question of spousal maintenance; and then finally, a question of contact time in respect of the children on behalf of the respondent father.
The applicant is the wife, Ms Kent, who was born in 1970; the respondent, her husband, Mr Kent, born in 1970. The parties were married in March 1998, and separated on 30 October 2006.
The marriage produced three children; the first being [X] born in 1999; the second, [Y] born in 2000; and the third, [Z] born in2002.
There is a reasonable degree of agreement between the parties concerning some of the critical facts which I will go into in a short time, which are particularly relevant to the question of contact time, and in relation to other issues, which I will deal with as I progress through the application.
If I can deal first with the issue of interim costs. An application was made on behalf of the wife pursuant to s.117 of the Act in relation to a costs order. Section 117 essentially provides that if in proceedings under the Act the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to sub-s.(2)(a)(iv) and (v) of s.117 and the applicable Rules of Court, make any such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the Court considers just.
In this case, the applicant essentially maintains that by reason of her somewhat lengthy marriage, although not overly lengthy marriage to the respondent, the fact that during the course of the marriage, she gave up employment, partly because the nature of the respondent's employment took them to various locations around the world and partly because shortly after their marriage their first child was born, she spent the better part of the marriage involved in child-rearing, she finds herself now in a position where she has been out of the workforce for nearly 10 years, and is, to that end, somewhat disadvantaged in terms of pursuing her former occupation, which was described in her affidavit as a film production agent.
She says that by reasons of those matters she is limited in terms of her present employment abilities, although she does have employment, as I will discuss later, but significantly, she is has been disadvantaged in terms of her capacity to undertake what might be described as more remunerative employment which might otherwise have been available to her. She is, to some extent, one would infer from the material, claiming that, in essence, by reason of her marriage, she has fallen into a position of economic disadvantage vis a vis the respondent, and accordingly, in terms of her immediate needs for funding to conduct this litigation asks the Court to consider making an interlocutory order without ordering expressly whether or not costs should be ordered, but really, an order in the nature of security for costs pending the resolution of this matter by way of a final hearing.
In essence, what she asks for is an advance of $25,000 being her anticipated legal costs to part of the proceedings – I think she actually provided an estimate of $50,000 based upon her solicitor's advices to her, but looks to receive some funding to the extent of 25,000 to get her at least to something close to the conciliation conference pretrial hearing stage.
It is proposed in a sense that the funding be short-term funding. There is, by operation of the orders which are anticipated to be finalised later today, to be a sale of the principal asset of the marriage, which is a house at Property C, for a sum of $775,000, which house is subject to a mortgage to the National Australia Bank; there is one for 95,000 which is a first mortgage, and it seems a second mortgage for a sum of 420,000 in respect of the property.
So it would appear that on the basis of the mortgages over the property there is some equity, some considerable equity in the property which, if the transaction noted to be the subject of a consent order transpires, will result in the property being conveyed from – well, at least the half-interest in the property being conveyed from the respondent to the applicant, and in turn the applicant paying to the respondent or into a trust account with the respondent's solicitor a sum which will equate with his half-interest in what could be described as the remaining equity in the property.
It would seem that there will, on that basis, be funds available. There was some debate between myself and counsel appearing on behalf of the respondent about the effect of this. Of course, the respondent opposes the application, but the matter really becomes one more of cashflow than of finalising the positions of the parties. As I have earlier said, the nature of the order sought is one in the nature of an order for security for costs, and it is not one which involves a final determination of costs, and in the event one where in the event the matter were to proceed to trial and there was no order as to costs it would be quite clear to me – and I think any other Judge hearing the case – that the sum of $25,000, if it were directed to be paid, would simply be an asset of the partnership, if I can describe the marriage as that, insofar as it would be a drawing down on the partnership account on the part of the wife which exceeded, for instance, the drawing down on the part of the husband in relation to those matters.
I see it as simply an accounting exercise. It is a matter that can be quite simply resolved arithmetically at the resolution of the trial by orders for final – or the final accounting in respect of property matters. It involves a short-term cashflow consequence, no doubt adverse to the respondent, but the respondent does have a significant cash advantage at his hands, for reasons I will come to shortly, and it, in my mind, seems to me that – not that I suggest for a moment that the respondent seeks to use his financial clout and position and advantage to disadvantage the applicant wife, but the fact remains that he enjoys a significant financial capacity above and beyond that of his wife, simply by reason of the roles that the parties adopted during the course of the marriage, and that in all of the circumstances, the fairest order would be to at least balance matters between the parties would be to permit the applicant to have access to a sum of $25,000 conditional upon the sum being directed to be subject to later accounting in the course of the final property matters, or resolution of the final property matters, and an order be made in those terms.
Concerning schooling, the next issue that arises for consideration concerns the schooling of the youngest child, [Z], born in 2002. Presently, she is at the what is termed the prep preparatory class at

[S] School. That is, in essence, a class that sits one level below the preparatory class, which is now a compulsory year in the Queensland Education system.
The fees, it would seem, for that child to attend the school for that class are about $8300 per annum, I am informed from the Bar table,

and I accept that as being a reasonable estimate of those fees.

Two difficulties arise here as I see it. First, dealing with the more practical aspects before getting down to, I think, the tests that have to be applied in resolving whether or not these fees should be paid – concerns the effect that the child not being in a pre-prep program or some other sort of program would have upon the mother's capacity to work. Again, as I debated with counsel for the respondent, it cannot be had both ways. The child either goes to or participates in a pre-prep program or some other sort of childcare, and the mother can be then assessed on the basis of her capacity to work. Or alternatively, the mother stays at home on a full-time basis, and the respondent does not get any credit for the mother's capacity to work.
There could be some argument at the margin concerning the fact that the pre-prep program at [S] School costs $8300 per annum, and that of course ignores the fact that there will be holiday periods and likewise through the year, but this Court commonly hears evidence concerning the costs of childcare, and one can say that childcare at that cost is not – would not be regarded at outrageous, particularly in the current market where there seems to be an extreme shortage of childcare positions.
So all up, it seems to me that, at least from a practical perspective, it is a matter that has some merit. However, of course, that is perhaps not the appropriate way to analyse the difficulty or the problem. What really has to be analysed, of course, is it really is part of a parenting issue, and it comes back to what could be described as the Pt VII considerations provided for in the Act.
That, of course, as a starting point, the need to consider what is in the best interests of the child as the paramount consideration. Although this is – while that obviously remains the critical consideration from any perspective, I also take into account, particularly in relation to this issue, that this is an interim hearing.
Looking at it again from a very practical perspective, I am conscious of the fact that the parties will be offered a trial in these proceedings certainly well before the end of the school year. I am conscious of the fact that in relation to this matter this is a matter where there is, for reasons I will come to shortly, a demonstrated capacity to pay on the part of the parents. I make that statement jointly, as well as separately in respect of the position of the respondent. It is also a fact that it is not an inconceivable outcome that there might be long-term orders made in relation to the provision of private education for the child, [Z], particularly when one has regard to questions of equity in the household given the nature of private education afforded to the other children, and also when one has regard to what could be described as the child's own interests in terms of the child developing friendships and becoming established in the household.
There is another matter which I have not addressed, but which I will address in terms of the matter of contact, and that of course is that the child being in a pre-prep program attend school five days a week on a regular basis. That of course makes it much easier for the Court to give, or have regard to what could be described as more relaxed attitudes to parenting arrangements, or arrangements that come close to what might be described as shared-parenting arrangements. It is, again, a matter that commonly comes before this Court, and the Court commonly hears evidence from people who are skilled in this area that it is difficult to introduce things that approach equal shared-parental responsibilities in circumstances where the children who are the subject of those orders do not enjoy routine. The presence of the child at a

pre-prep program at a school attending what could be described as regular school hours enables the Court to afford a level of contact which might not otherwise be regarded as appropriate for a child of that age, and to that end, the respondent enjoys that benefit if the Court makes an order directing the child continue in that program.
On balance, it seems to me that having regard to capacity, the child should be continued in that program if a capacity to pay can be demonstrated, which leads me really to deal with the next issue which will in part move into the issue of the spousal maintenance application, and that of course is the capacity to pay.
Both parties have filed statements of financial circumstances, and as has been my short experience in this jurisdiction and what short experience in this jurisdiction has demonstrated, I have to say, I frankly find the statements on occasions incredible, and with respect to the parties, today is no exception. I have before me statements demonstrating household expenditure that approaches – well, it exceeds well over $100,000 per annum per household in circumstances which ignore, for instance, the payment of mortgages, the payment of leases on motor vehicles. In one instance, the payment of child support fees, and the payment of school fees, which on any arithmetic assessment, simply cannot measure up against the notional income which is declared.
I have, however, another set of records which I find a little bit more helpful, at least in terms of working out income. Annexed to the affidavit of the applicant filed 23 January 2007 is a spreadsheet which is one prepared, and appears to be part of a business record created by [D] Consulting, which is the business conducted by the respondent. In her affidavit, the applicant says that the spreadsheet was prepared and provided by the husband to her in late 2006 in relation to the income and expenditure of [D] Consulting. It has not been challenged in the husband's material.
It is instructive in many respects. First, it provides an income, or I should say a detailed breakdown of income and expenses from the period commencing August 2005 through to November 2006, a period of approximately 15 months. It indicates income, which I take to be the gross income of the operation, and then in a detailed analysis demonstrates drawings, and other expenses including car, fees, fuel, telephone, and miscellaneous.
The income for [D] Consulting was demonstrated over that period to be 363,000 with drawings of 330,000. Again, without any more than the material which is contained within the spreadsheet and the analysis, it would suggest to me that there has been broadly about a $22,000

per month on average income enjoyed by [D] Consulting over that

15 month period. Again, doing the best I can, having regard to the nature of the application, allowing $10,000 for tax would suggest that the respondent has enjoyed net income of about $12,000 per month over that period, and that of course does not include the allowance for a motor vehicle, which of course has been provided for separately in the schedules. The motor vehicle's allowance seems to be something approaching $25,000 over that period, or a little over $2000 a month, which probably accords fairly roughly with the nature of a lease on an $80,000 vehicle and associated running costs.

So it seems to me that there is at least $12,000 per month available by – or I should available to the respondent, after tax based on those figures, to address his personal and other obligations. The other obligations in this instance would include a mortgage, or at least for the time being a mortgage allowance of $831 per month on the residence at Property C, $950 a month for the lease of the Toyota Landcruiser, Child Support Agency fees of $2519 per month, and school fees – if they be allowed in full – of $2330 per month, leaving a surplus of $6270 per month, or in other words, roughly leaving approximately $6000 per month available for distribution, or for expenditure by himself.
It does seem to me, having regard to the disposable income available based on those figures, there is in this instance adequate capacity on the part of the respondent to make payments. As I say, it is unfortunate, but one cannot make much sense of a financial statement where it is quite evident that the expenses claimed, in terms of weekly expenditure, far exceed weekly income. It simply means – and it is a criticism I make of both parties – it simply means that I cannot do much more than apply a rough rule of thumb in terms of resolving the conflict between the parties for the purposes of this application.
So in those circumstances, I am inclined to the view that it is better adopting, if you like, these sort of paramountcy principles that one might ordinarily apply. It is much better, or it is very much in favour of the interests of the child that her position be preserved if it can be afforded. It seems to me it can be afforded, so on the balance of convenience, I determine that it is appropriate that the child continue in the pre-prep program at the school until further order.
That, as I say, leads into the question which is that of spousal maintenance. Criticism was made by counsel for the respondent that there is some extravagance on the part of the applicant, and there is probably something in the criticism there. It is a sad fact of life that divorce is a wealth-destroying enterprise. The fact remains both parties became accustomed to a certain lifestyle which was a function of a functional marriage. The marriage is now finished, and it is now important for the parties to move on, readjust their living standards and lifestyles to accommodate their new circumstances. I am not going to be critical of any particular party, but it is apparent to me, as I say, by reference to the respective form 13s, that each party simply has to now cut their cloth, to use the colloquialism, and reconsider their circumstances.
However, that said, a number of other matters need to be raised. First, the question is raised, or the issue was identified by the applicant under s.72 of the need for spousal maintenance. It seems to me by reason of the matters that I have earlier identified, that is in particular the fact that the wife has been out of the workforce for a considerable period of time, despite the fact that she was tertiary qualified and previously enjoyed what would seem to be reasonably well-remunerated positions. She is presently at the moment working part-time as a [omitted] for four hours, and has another job with a firm called [omitted] which involves two days per week for four hours for which she is paid $200. That is temporary employment. But more importantly, the level of employment would suggest that she is employed well below her skill level, and it will take some time for her to regenerate lost skills and reposition herself in the employment market.
While that takes place, and while of course she has the obligation of being a principal carer, although not the sole carer of the children, and I say that because on any view of events, she will have the children for the majority of the time, the fact remains that she will always be in the short-term disadvantaged in terms of getting out into any retraining program and getting back into the workforce in a more effective and remunerative way. That, again, is a consequence of her marriage, and it seemed to be an arrangement that suited both parties until separation late last year. I am of the view that it is appropriate that there be spousal maintenance, and the need has been demonstrated although I am not satisfied that the sum claimed for by the wife necessarily represents and appropriate sum when regard is had to the need for the father obviously to proceed out and set up his own household, and the need for him to get on with his life, and also with the need for him to make appropriate – or have sufficient finances to make appropriate arrangements for the care of his children when he has them on contact occasions.
I take into account again the figures that I broadly outlined before which show that there is roughly a $6000 surplus between the two parties, or I should say, a $6000 surplus per month in the income of the respondent based upon the figures that have come out of his spreadsheet.
I recognise that there are issues raised on behalf of the respondent such as that the respondent will have a tax bill coming in shortly. Again, that is a matter which will have to be weighed into the overall obligations, I suppose, of the parties in terms of their property settlement. I take into account some of the fixed expenses that he is going to have, although having said that, I note that the mortgage will probably be eliminated within the next month or so, but I – having made that observation, do not discount for the mortgage because I recognise that there will be a further mortgage obligation incurred on the part of the wife, which needs to be allowed for. I take into account the fact that – and I premise my figures upon the fact that at least until there is a final property settlement – the husband will continue paying the lease on the Landcruiser, and I take into account of course the fact that he will continue to pay Child Support Agency fees as they are assessed, subject to his application for them to be reviewed.
In all of the circumstances, I think that it is appropriate that there be a payment of spousal maintenance fixed in the sum of $2500 per month, and I will order in those terms.
That then leads me to the last issue which concerns the issue of contact. I have touched upon many of the issues that are probably relevant to resolving the contact issue in this case. I should just identify expressly for the record the two proposals that are made.
There is a proposal made on the part of the mother that the children live with her and there is no difficulty there. The question becomes the question of contact. It is proposed on the part of the mother that there be each alternate weekend from collection after school on Friday until return to school on Monday contact between the father with the children, together with the usual orders in relation to holidays, which I will not detail here.
The father's proposal is slightly different. The father proposes that contact would commence on a Wednesday afternoon and proceed through – in other words, collecting the children from school on a Wednesday afternoon and proceed through until Monday morning when the children would be returned to school. It is fair to say again – this being an interim application – the parties are, as I have indicated, not significantly apart in terms of many aspects of this application; for instance, the important issues such as the children living with the mother is not an issue that occasions concern, it is just a question of the additional contact which is requested effectively from Wednesday as opposed to Friday, an extra two nights a fortnight on the part of the respondent.
Can I say that obviously in all of these cases, as I have already indicated, one has to have regard to the best interests of the children as being the paramount consideration. This would ordinarily be the sort of case where one might expect that there would be a presumption of equal shared-parental responsibility; however, in this case the presumption does not appear to arise because there does appear reasonable grounds to believe that one of the parents has engaged in what is broadly defined as family violence, and it is broadly defined, but the legislation does not make any reference to that family violence having a temporal quality, in other words it does not matter how long ago it occurred, the legislation seems to, as it reads – and I have not found any cases to the contrary – as it reads it simply provides that if there is evidence of family violence then the presumption does not apply, and so on that basis, strictly speaking, the presumption would not apply in this case. That is not to say, however, that as I understand the authorities one cannot look at s.60CC and say that in any event it is still a matter which is appropriate despite the fact that there has been – or that despite the fact that the presumption does not apply because of a s.61DA(2) issue. Clearly, that would make sense; otherwise the law, in a sense, would be a nonsense if, for instance, in a relationship of longstanding there had been one incident of family violence conceded by both parties happening very earlier in a lengthy relationship it was to visit such dire consequences it simply would not make sense.
So while I am cognisant of the issues that are raised by each of the parties, there are allegations of violence in part conceded by the respondent, there are allegations of abuse of the child, particularly the younger child, [X], where he – I think a tennis ball was thrown at him in one event – I take a fairly broad view in relation to these matters. It seems to me from – at least in relation to more recent events – those matters being occasioned in circumstances of what could be described as reasonably high states of anxiety associated with the separation of the parties. Both parents, at least from the material, strike me as being loving and concerned parents who both equally have the best interests of the children at heart.
It is not so much a case, I suppose, today where there is an order sought in relation to equal and shared parental responsibility, but one of the parties seeks to have substantial and significant time with the children. Of course, the s.65DA(a) considerations do not apply because – or one could say they do not apply if the term equal shared-parental responsibility is, as a matter of statute, to be construed as picking up that term where it is provided for in s.61DA, although it can be said to have application if one adopts a more generic approach to the terms equal shared-parental responsibility. They could be said to be terms of art, but funnily enough, the Act only defines parental responsibility, it does not define equal and equal shared-parental responsibility, although it is used, as I say, in a particular way in s.61DA.
So I suppose, to cover my tracks on this point, I make the observation that this is a case where if one is going to have regard to ordering circumstances where one approaches an equal shared-parental responsibility – although I will not make a direction in those terms today, but it might be argued at a later hearing – and the Court is not going to order that there be equal time, which is not going to be the case today, then to be complete I should have regard to s.65DA(a)(2) issues, and for completeness, I make the point that this is a case where the party – at least the respondent only seeks five days out of 14 as opposed to three out of 14, and so I have regard to questions of the children spending substantial and significant time with each of the parents, and I do regard those again as – and that is of course a term of art defined in sub-s (3), and I do regard that as a matter which would be in the best interests of the child, perhaps taking it back to s.60CC where we started, because particularly in the context of an interim application, it will encourage – and it seems from the evidence that there is some benefit for the children having a meaningful relationship with both of the children's parents, and that will occur.
In terms of the other primary consideration, there does not appear to be any significant need in this instance to protect the children from physical or psychological harm by being exposed to abuse, neglect, or family violence.
In terms of additional considerations, I have no evidence before me concerning the children's views, but one can infer from the fact that the parties are willing to permit contact on a regular basis that the children clearly would enjoy that, and it is something that they, by their conduct, express positive views toward.
I take into account the nature of the relationship of the children with each of the parents, and again it is a bit difficult on the evidence before me, but I have regard to the fact that the parents have each involved themselves with the children. Dad is a coach with the local rugby team for the boy, [X]; they are both concerned about the health issues involving, I think, the middle child, who has some difficulty. So it seems to me that there are good relationships and those relationships need to be developed and engendered between the children.
I take into account the willingness and the ability of the parents to facilitate and encourage a close and continuing relationship. Nothing I have heard today or seen in the material suggests that either parent thinks the other intentionally wishes to poison the children against the other parent. I take into account of course that events that have occurred recently have occurred in a fairly highly emotive context, but otherwise, it seems to me, on balance from the papers, that that is not such an issue at the moment.
There are in this case – really, there is little practical difficulty or expense for the children spending time and communicating with the parents. Dad lives at Property R, mum lives at Property C, it is about a half hour's drive from each other. Dad can very easily, in the course of his business, I expect, take the children to and from school, or make arrangements, appropriate arrangements in respect of that.
I take into account the capacity of each of the child's parents to provide for the children, and that seems to be well-established on both the material and a psychological sense. I take into account the maturity, sex, lifestyle, and background of the children, recognising again that these are children who are now school-aged, and for whom routine, provided it is not disrupted, will not suffer, and in fact, perhaps it will assist them as they grow up.
I take into account the attitude to the child and the responsibilities of parenthood demonstrated by the parents. This requires me to take into account to the extent to which each of the child's parents have fulfilled his or her responsibilities as a parent, and they have taken the opportunity or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spending time with the children, and communicating with the children, and again, all the evidence demonstrates that until the time of separation the parties did in fact participate in making decisions about the children. Two instances that come to mind in this case involve educational issues and also health issues. It seems in all of those circumstances that there has been a responsible demonstration of responsible parenthood.
In all of the circumstances, I am of the view that it is appropriate. on an interim basis, that the respondent have contact with the children following the completion of school on Wednesday until the commencement of school on Mondays, and that those arrangements will be very much in the best interests of the children, and I will make orders in those terms.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Bev Schmidt

Date: 12 April 2007