Lerrada & Wilkins
[2020] FamCA 1047
•10 DECEMBER 2020
FAMILY COURT OF AUSTRALIA
Lerrada & Wilkins [2020] FamCA 1047
File number(s): CAC 1831 of 2019 Judgment of: GILL J Date of judgment: 10 December 2020 Catchwords: FAMILY LAW – Live with arrangements for the children – where orders are in place for equally shared parental responsibility – where orders provide for substantial and significant time with one parent – where both parties agree to some variation in the time spent with the parties – where there is a high degree of conflict between the parties – where the children express the desire to spend more equal time with the parties – where equal time has the potential to provide and preserve the benefits of meaningful relationship with each parent – where a shift in time spent with the parties is unlikely to reduce the conflict between the parties – interim property – where extent of disclosure is unclear – where one party seeks that the other party vacate a property to list it for rent – where the applying party failed to adequately explain how she would fund the retention of the properties Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 65DAA, 114, Cases cited: Davis & Davis (1976) FLC 90–062
G & T (2004) FLC 93–176
Morgan v Miles (2007) FLC 93-343
Mullen & De Bry (2006) FLC 93–293
Soloviev & Masur [2020] FAMCA 398
Number of paragraphs: 58 Date of hearing: 18 November 2020 Place: Canberra Counsel for the Applicant: Dr Leslie Solicitor for the Applicant: Strong Law Pty Ltd Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Farrar Gesini Dunn Solicitor for the Independent Children’s Lawyer Legal Aid, ACT ORDERS
CAC 1831 of 2019 BETWEEN: MS LERRADA
Applicant
AND: MS WILKINS
Respondent
LEGAL AID ACT
Independent Children’s Lawyer
ORDER MADE BY:
GILL J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.Orders 4 and 5 of the orders made 1 October 2019 (as amended) are discharged.
2.The children live with their parents during school terms in the following fortnightly cycle, recommencing in accordance with order 2(a) below at the start of each school term:
(a)With Ms Lerrada from after school (or 3:00pm) on Monday until after school (or 3:00pm) on Wednesday;
(b)With Ms Wilkins from after school (or 3:00pm) on Wednesday until after school (3:00pm) on Friday;
(c)With Ms Lerrada from after school (or 3:00pm) on Friday until after school (or 3:00pm) on Wednesday;
(d)With Ms Wilkins from after school (or 3:00pm) on Wednesday until after school (or 3:00pm) on Monday.
3.Each school holiday period shall be deemed to commence on the first Saturday and conclude on the last Sunday of each school holiday.
4.The children shall spend holiday time as follows:
Terms 1, 2, and 3 holidays:
(a)with Ms Wilkins from 5.30pm on the first Saturday of the holidays until 5:30pm on the second Sunday of the holidays;
(b)In the event that the children are with Ms Wilkins for part of the last day of term, the time with Ms Wilkins shall extend to the commencement of the school holiday time with Ms Wilkins as set out in order 4(a) above;
(c)with Ms Lerrada from 5.30pm on the second Sunday of the holidays until 3:00pm on the first day of school term at which time the term time arrangements recommence with time with Ms Lerrada;
Christmas School holidays:
(d)with Ms Wilkins from 5.30pm on the first Saturday of the holidays until 5:30pm on the second Sunday of the holidays;
(e)thereafter in alternate weeks from 5.30pm on Sunday until 5.30pm on the following Sunday, commencing with Ms Lerrada;
5.For the purposes of handover of the children during any period of non-attendance at school, changeover shall occur at the visitor car parking area closest to the residence of the receiving mother, or such other location as may be agreed in writing.
6.The parties are entitled to depart from the terms of these orders in relation to the children by agreement in writing.
7.That the parties shall each do all acts and things necessary to obtain a valuation of each of the real properties and for this purpose:
(a)Ms Lerrada shall nominate three valuers, including availability and cost, within 14 days of this order and Ms Wilkins shall nominate the valuer from that list within a further 7 days;
(b)the parties shall prepare a joint letter of appointment to the valuer;
(c)the parties shall share equally the cost of the valuation.
8.Within 14 days of this order each party shall request in writing the financial information and documents they require for the purpose of the financial discovery process.
9.Each party shall provide the other party with the documents or information requested by them within a further 14 days.
10.Each party shall be then entitled to request further information or documents within a further 14 days and shall also provide any further information requested of them within a further 14 days.
11.Each party is to comply with their duty of disclosure and in doing so each party is to:
(a)produce and maintain a schedule of each document or class of documents the party has provided by way of disclosure;
(b)record on the schedule the date of the disclosure;
(c)record on the schedule the mode of the disclosure (for example, whether it was by email or hard copy);
(d)on each event of disclosure by that party that party is to update the schedule and provide it with the disclosure to the other party;
(e)on each Court event each party is to have a current version of the schedule available to produce to the Court.
12.The parties are to attend a conciliation conference before the Registrar on 24 March 2021 at 9.30am.
13.The extant applications in a case of each party are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lerrada & Wilkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
Introduction
The parties seek interim relief both in relation to their dispute over their children, and their dispute in relation to their property.
Interim orders were made on 1 October 2019 that there be equally shared parental responsibility for the children X (born … 2009) and Y (born … 2011) and that the children live with Ms Lerrada and spend substantial and significant time with Ms Wilkins, on a 10/4 split each fortnight in favour of Ms Lerrada. In November 2019 orders for made for the children to spend holidays with each parent on a week about basis.
Ms Wilkins now pursues orders to equally share time during school term time on a 2:2:5:5 split. Ms Lerrada opposes such a change.
Ms Lerrada seeks that Ms Wilkins’ application be dismissed, but that the arrangements be varied to a 9:5 split in Ms Lerrada’s favour, along with definition of the school holiday arrangements.
The single expert, psychologist Mr B, prepared a report following interviewing the parties and associated persons and conducting observations, which was available for the interim hearing.
In relation to the property, Ms Wilkins seeks orders to cause Ms Lerrada and the children to vacate a property at 3 C Street, Suburb D, and for that property, along with properties at 5 C Street and 7 C Street, Suburb D to be rented out with the proceeds used to meet outgoings. Ms Wilkins proposes that they jointly meet any shortfall and, if there is any excess, that she receive the excess.
Ms Lerrada seeks that the properties be valued, that disclosure be provided and that the parties attend private mediation.
The specific orders sought by each of the parties are set out at Annexure A of this judgment.
Interim children
Whether proceedings are interim or final, the paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests. As stated in SS & AH [2010] FamCAFC 13 at [81] it is necessary to:
keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made
Despite this limitation, at [100] it is stated that:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In doing this, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation (U & U (2002) 211 CLR 238).
In this case, the parties endured an extended period of transition into separation under the one roof. This culminated on 5 September 2019, with Ms Lerrada obtaining an ex parte interim family violence order against Ms Wilkins in the ACT Magistrate’s Court, which initially excluded Ms Wilkins from the children, as well as from each of their properties. While the order permitted Ms Wilkins to spend time with the children by agreement, no agreement was reached. It was shortly after this in October and November 2019 that the Federal Circuit Court made the current orders providing for the children to have time with Ms Wilkins. On 9 January 2020, the parties resolved the family violence order proceedings by entering into mutual undertakings.
Each party alleges that the other has been abusive and controlling of the other. In what may be described as a high conflict case, there are substantial areas of commonality in the parties’ accounts. Those areas of commonality are, however, marked by radically different interpretations of those events. For example, Ms Wilkins alleges an incident occurred during the relationship in which Ms Lerrada drove rapidly and dangerously in the car in which Ms Wilkins and Ms Lerrada and the children were travelling. Ms Lerrada appears to accept that an incident occurred. They differ in the interpretation of how the incident was subsequently dealt with. Ms Wilkins says that she discussed the matter with a limited group, Ms Lerrada being angered by her doing so. Ms Lerrada says that Ms Wilkins discussed the matter with other persons over an extended period without Ms Lerrada knowing, and that Ms Wilkins has acted to turn the parties’ community against Ms Lerrada. Ms Wilkins asserts that it was discussed privately by her to obtain support.
By way of further example, at separation, on obtaining the family violence order, Ms Wilkins alleges that Ms Lerrada travelled away with the children, with her brother Mr E and Mr F, the biological father, to a holiday destination. Ms Lerrada accepts that this is so. Ms Wilkins, however, also appears to allege that this forms a part of a plot to remove Ms Wilkins from the children’s lives, and for Mr F to supplant her. Ms Lerrada, however, says that the short holiday was planned at short notice and was a necessary respite in the context of the recently acquired family violence order.
By way of further example, the parties appear to have had an ongoing dispute as to the exchange of a chromebook with the children (now, it appears, resolved by the purchase of multiple further chromebooks). Ms Wilkins attended outside Ms Lerrada’s home, one of the children knocking on the door to retrieve the chromebook. Ms Wilkins alleges that Ms Lerrada’s brother was present but refused to answer the door, leading to confusion on the part of the children. The brother agrees that he was present, saying that he declined to answer the door due to his fear of Ms Wilkins.
Even from this limited subset, it may be seen that the perspectives of the parties, and of the persons associated with each of the parties are highly polarised. It is apparent that there is a poor, uncooperative, suspicious and conflictual relationship between the parties and those associated with them that is unlikely to resolve. These relational characteristics bode poorly for the wellbeing of X and Y.
The children have been exposed to the effects of the parties’ separation, each party alleging that the other has said or done things to the children undermining of their relationship with the other party.
Ms Lerrada reported to the expert a degradation in her relationship with the children in recent months that she attributed as likely due to Ms Wilkins, who conceded that the children were likely aware of her (negative) feelings toward Ms Lerrada and the biological father. Part of the context of those negative feelings is that Ms Wilkins regards them as co-conspirators, plotting to undermine Ms Wilkins’ position with the children. Despite such feelings, Ms Wilkins described limited positive steps that she has taken to support the relationships, and to establish a more positive pattern of communication.
As noted above, Ms Lerrada attributes X’s and, in particular Y’s acting out in her care as the product of Ms Wilkins’ conduct. She observes things said by the children as likely reflecting things said to the children by Ms Wilkins. Y, to a greater extent than X, is reported as saying negative things to Ms Lerrada, her brother Mr E and to Mr F. The prospect of Ms Wilkins saying negative things about the household is consistent with the perspective of that household presented by Ms Wilkins, for example, where she accused Mr F of grooming the children, and of sexualising them. Although she asserts that her allegation of grooming should not be taken to hold sexual connotations, Ms Lerrada alleges that in correspondence to the Registrar such connotations were made clear. Ms Wilkins’ reported articulation of her concern to the expert, likewise, did not make the distinction in her “grooming” allegation that she now makes. Although at this stage it cannot be determined what Ms Wilkins has, or has not said to the children, her strongly negative attitude to Ms Lerrada and her household is apparent.
It is not possible in these interim proceedings to drill down to identify the conduct of each party and how it has impacted on the children.
The expert observed similar patterns of interaction between the children and each of the parties, with the children describing the parties as loving and kind. He expressed “significant concerns about each parent’s ability to implicitly and explicitly support the relationship with the other parent.”
The expert identified the need to rectify, in the short term, the changes in the children’s behaviour toward Ms Lerrada. The expert identified that the changes may, in part, flow from the sudden disruption in late 2019 in the contact between the children and Ms Wilkins. The expert saw that Ms Wilkins has a role to play in mitigating this change in behaviour flowing from a change in the children’s attitude to Ms Lerrada in the context of the separation.
The expert observed that each child is expressing the view that he wanted more equal time with each parent, however, he thought that neither was of an age to fully appreciate such, and could not exclude the possibility that some pressure had led to the expression of such views.
The expert did not see either child as at risk in either parent’s household, but believed each to be at risk due to Ms Wilkins’ and Ms Lerrada’s inability to collaborate, in the context of their suspicions and resentments toward each other.
The expert considered that equal time in each household “would significantly improve their relationships with both parents, given their wishes expressed upon interview, and their interpretation of events surrounding the separation. This statement is predicated however, on the reduction of conflict between the parties, which has escalated to a degree where each party is viewing the other party’s behaviour with suspicion and interpreting actions as driven by sinister motives.”
Although Ms Wilkins identified a number of recent instances of respectful communication between the parties, and while such may be the precursor to an ongoing improvement, a short sample of positive communication is unpersuasive as to a settled improvement having taken place. It is particularly difficult to be persuaded so where Ms Wilkins has (rightly or wrongly) observed to the expert:
“What I would be thinking about in your report, is that when Ms Lerrada, Mr E and Mr F can be cross examined, if the Court finds as I say that in fact these allegations are completely fabricated as an act of aggression and abuse. How on earth can I be expected to coparent with these people? I don’t think she’s operating independently as a mother because she is controlled by these men.”
The key consideration in this interim hearing relates to providing and preserving the benefits of meaningful relationship with each parent pending a final hearing, where the patterns of interaction have been recently observed by the expert as similar. The key risk is of the destruction of such benefits, by virtue of the parties’ antipathy to each other and the unequal arrangements for time with each parent.
Here, it is uncontroversial that there is a high degree of mistrust and conflict between the parties, and that the children have been exposed to such. It is also uncontroversial that the children’s conduct toward Ms Lerrada has degraded and that, whether it can bear weight, it appears uncontroversial that the children each seek equal time with each party.
The expert has identified a need to counteract the degradation of the relationship with Ms Lerrada in the short term.
The issue is, in the light of the identified risk of degradation of the relationship with Ms Lerrada, what orders counteract such a risk within the context of a number of uncertain factual matters.
The risk is that if the degradation continues, that it will culminate in a refusal to spend time with Ms Lerrada. Such an outcome appears at this early stage very much counter to the best interests of the children.
The current arrangements appear to run a heightened risk of diminishing the benefits of meaningful relationship with Ms Lerrada and undermining the relationship. Neither party seeks that the status quo remain, although they differ as to the degree of increase in time with Ms Wilkins.
The expert proposed to deal with such by an equal time arrangement. However, this was predicated on a reduction of hostilities.
The expert identified that the worsening circumstances for the children can be mitigated, and potentially reversed by Ms Wilkins both shielding the children from her emotional response, and promoting the relationship with Ms Lerrada, the very thing she asserts that she is able and willing to do, and presently doing.
Against this, there is the risk that if Ms Wilkins does not successfully promote the relationship with Ms Lerrada, that there may be a further degradation of the relationship as the children spend more time with Ms Wilkins.
There is also the risk of further conflict erupting from the need for the parties to cooperate to a greater degree in order to effect an equal time arrangement. Such further conflict is highly likely to be detrimental to the children, whoever it is that is responsible for, or blameworthy with regards to, the added conflict.
Given the reasonably uncontroversial matters recited above, there can be little confidence that there will be a softening of attitude and approach between the parties and those persons associated with them. There can be little confidence of such whether there is the increase of one night per fortnight to a 9:5 arrangement as proposed by Ms Lerrada, or the change to a 50-50 arrangement as proposed by Ms Wilkins.
In circumstances where there is an order for equally shared parental responsibility (the order of 1 October 2019 being unchallenged in these proceedings), the Court is required to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles (2007) FLC 93-343 as “the careful exercise of a structured discretion to determine the appropriate order to be made”. That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
The question arises as to whether an order for equal time is in the children’s best interests and is reasonably practicable. Although the efficacy of such an order to deal with the risks of the degradation of the relationship with Ms Lerrada is undermined by the doubt that accompanies the notion that there will be a softening of the position between the parties, and that, in the face of Ms Wilkins’ strong criticism of Ms Lerrada, her brother and Mr F she would promote their relationships with the children, it is an approach that, on the contentious options presented to the Court, best deals with that risk. Despite limited weight being able to be accorded to the children’s views at present, for the reasons outlined by the expert, such an approach is in accordance with the children’s expressed views, potentially reducing resentment that they may harbour toward Ms Lerrada under the current arrangements. Such an order is also consistent with the relationships observed by the expert with each of the parents.
Although, by virtue of the interim nature of the proceedings, each of these matters is clothed with uncertainty, in assessing the risks facing the children, their best interests are best pursued, albeit imperfectly, by an order for equal time. An order for an equal time arrangement presents the opportunity to undo the damage currently appearing in the relationship between the children and Ms Lerrada. In doing so, it is acknowledged that such a move carries its own risks to the relationship with Ms Lerrada.
It was suggested during the hearing of the matter that such an order acts as a de facto final order, predetermining the ultimate disposition of the matter. This is not the case. Ms Wilkins, by virtue of these orders, carries a heavy burden of promoting the relationship between X, Y and Ms Lerrada, her brother and Mr F. Further significant degradation, rather than improvement of those relationships rationally carries with it the potential for a different outcome to result on the final hearing of the matter.
On balance, Ms Wilkins’ application for equal time ought to be acceded to.
In an effort to minimise further conflict between the parties, Ms Lerrada’s application for definition of the arrangements for the holidays ought also to be acceded to, with minor modification to remove the need for a changeover immediately prior to return to school at the end of school holidays, and immediately prior to the holidays.
Although Ms Wilkins also sought that there be an order to permit Ms Wilkins and Ms Lerrada to jointly attend medical and dental appointments, such order should not be made given the severe difficulties between the parties. Having them jointly attend such appointments is a recipe for further conflict.
Interim Property
The interim property case is characterised by a number of features. Firstly, each party asserts that she is in a difficult financial situation, with neither party accepting that she is currently able to maintain the expenses on the three properties.
Secondly, the extent of disclosure between the parties remains unclear, with Ms Lerrada claiming that she has not received disclosure for an extended period, Ms Wilkins claiming that she has provided a significant amount of disclosure.
Ms Wilkins seeks that Ms Lerrada be ordered to vacate the property at 3 C Street, Suburb D in the Australian Capital Territory, in order to list the property for rent on the Airbnb website.
The issue of whether Ms Lerrada ought to be required to vacate the home falls within s 114 of the Act.
When proceedings are before the Court, the Court has broad powers to grant injunctive relief including for the purpose of preserving the property of the parties and/or otherwise regulating the conduct of the parties pending final hearing (G & T (2004) FLC 93–176 at 78,989–78,990, at [53]–[54]).
Pursuant to s 114(3), the Court must be satisfied that it is just or convenient to grant such an injunction or make an interlocutory order (Mullen & De Bry (2006) FLC 93–293 at 80,999).
In Davis & Davis (1976) FLC 90–062, the Full Court considered the circumstances in which the Court could exercise the power to determine whether a party should have exclusive use and occupation of a matrimonial home, stating that:
The criteria for the exercise of the power under sec. 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
The applicant seeking an injunctive order bears the onus of satisfying the Court that the circumstances justify the making of that order.
In Soloviev & Masur [2020] FamCA 398, Berman J identified a non-exhaustive list of considerations as referred to by the Full Court in Davis as including:
(a) What alternative accommodation may be available to the parties?;
(b) Does the party who is wanting to remain in sole use and occupation have financial resources that would enable them to secure appropriate accommodation?;
(c) Is it more or less convenient for either of the parties to leave the property?;
(d) Are the interests of a child or children affected by a party seeking to remain or an application that a party vacate a property?;
(e) Would the difficulties between the parties be remedied on an interim basis by a non-molestation order being put in place?;
(f) Could it be said that the husband may suffer an injustice by being forced to take up substandard or inappropriate accommodation?
Ms Wilkins’ application contained a significant and unexplained matter as to how, if her proposal was followed, she would have the capacity to fund the retention of the properties. On her assessment, the income referable to the two investment properties does not meet the outgoings. At present, it is the income from the two investment properties that constitutes the income relied upon by Ms Wilkins. Her financial statement attests to a significant shortfall between such income and her expenses to the tune of approximately $3,000 per week. Yet, Ms Wilkins’ position is that, with rental income from the third property, sufficient expenses will be able to be met such that the shortfall could be met by herself and Ms Lerrada.
On her own material, such an outcome does not appear to be available.
The approach nominated by Ms Lerrada places the parties in a position to each be able to evaluate their actual circumstances by engaging in sufficient disclosure and by identifying the value of the properties that they currently hold. If they are then unable to determine how the properties will be dealt with, they will each then be in a better position to identify to the Court either an interim or a final resolution.
However, absent the agreement of the parties to private mediation, the parties will instead be directed to attend a conciliation conference before the Registrar on 24 March 2021 at 9.30am.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 10 December 2020
ANNEXURE A
Orders sought by Ms Lerrada
1That the Application in a Case filed by the Respondent Mother on 31 March 2020 be dismissed.
2That Order 5a.1 of the Orders of 1 October 2019 be varied such that the children spend time with the respondent mother during school term on every second weekend from after school on Thursday to the commencement of school on Monday. The children otherwise continue to spend time with the Applicant and Respondent in accordance with Orders 4, 5, and 6 of the Orders made on 1 October 2019, and at such other times as agreed in writing between the parties.
3That each school holiday period shall be deemed to commence on the first Saturday and conclude on the last Sunday of each school holiday. The children shall spend holiday time as follows:
Terms 1, 2, and 3 holidays:
(a) with the Respondent Mother from 5.30pm on the first Saturday of the holidays until 5:30pm on the second Sunday of the holidays;
(b) with the Applicant Mother from 5 .30pm on the second Sunday of the holidays until 5.30pm on the following Sunday (being the last Sunday in the mid-year holiday periods);
Christmas School holidays:
(c) with the Respondent Mother from 5.30pm on the first Saturday of the holidays until 5:30pm on the second Sunday of the holidays;
(d) thereafter in alternate weeks from 5.30pm on Sunday until 5.30pm on the following Sunday, commencing with the Applicant Mother.
4That the parties shall each do all acts and things necessary to obtain a valuation of each of the real properties and for this purpose:
(a) the Applicant Mother shall nominate 3 valuers, including availability and cost, within 14 days of this order and the Respondent Mother shall nominate the valuer within a further 7 days;
(b) the parties shall prepare a joint letter of appointment to the Valuer;
(c) the parties shall share equally the cost of the valuation.
5That the parties attend private mediation with an agreed mediator before March 2021, with the costs of such mediation to be shared equally between the parties.
(a) For this purpose, within 14 days of this order each party shall request in writing the financial information and documents they require for the purpose of the financial discovery process;
(b) Each party shall provide the other party with the documents or information requested by them within a further 14 days.
(c) Each party shall be then entitled to request further information or documents within a further 14 days and shall also provide any further information requested of them within a further 14 days.
Orders sought by Ms Wilkins
Parenting Orders
6Orders 4, 5, 6 and 7 of the Orders made on 1 October 2019 (as amended) be discharged.
7The children, Y (born … 2011) and X (born … 2009) (“the children”), live with their parents during school terms in the following fortnightly cycle:
a. With the Respondent from after school (or 3:00pm) on Monday until after school (or 3:00pm) on Wednesday;
b. With the Applicant from after school (or 3:00pm) on Wednesday until after school (or 3:00pm) on Friday;
c. With the Respondent from after school (or 3:00pm) on Friday until after school (or 3:00pm) on Wednesday;
d. With the Applicant after school (or 3:00pm) on Wednesday until after school (or 3:00pm) on Monday.
8The children spend half of each school holiday period with each parent, as agreed in writing between the parents, and failing agreement:
a. The children live with the Applicant for the first half of each school holiday period in 2020 and each alternate year thereafter;
b. The children live with the Respondent for the second half of each school holiday period in 2020 and each alternate year thereafter;
c. The children live with the Respondent for the first half of each school holiday period in 2021 and each alternate year thereafter;
d. The children live with the Applicant for the second half of each school holiday period in 2021 and each alternate year thereafter.
9Each parent is at liberty to attend medical or dental appointments for the children and:
a. Any parent making such an appointment shall advise the other in writing of the appointment details, including location, at least 5 days beforehand unless in cases of illness or emergency, in which case the notice shall be as much notice as is practicable prior to the appointment or attendance (where an appointment is not required).
10For the purposes of handover of the children and during any period of nonattendance at school, changeover shall occur at the visitor car parking area closest to the residence of the receiving mother, or at another location agreed in writing.
Property Orders
11The Respondent forthwith vacate the property at 3 C Street, Suburb D in the Australian Capital Territory (“3 C Street”).
12The parties forthwith do all things necessary to cause 3 C Street to be listed for rent on the Airbnb website, with the Applicant to manage the listing.
13The parties do all things necessary to cause the rental income received from 3 C Street and the properties at 5 C Street and 7 C Street, Suburb D in the Australian Capital Territory (“the Investment Properties”) to be distributed as follows:
a. To pay the repayments for the Commonwealth Bank home loans secured against 3 C Street and the Investment Properties as and when they fall due; and
b. To pay the rates, land tax and utilities for, and all other costs of and associated with, 3 C Street and the Investment Properties.
14In the event that the rental income from 3 C Street and the Investment Properties is insufficient to cover the expenses outlined in Order 8 above, the parties shall share equally in the remaining expenses and the parties be permitted to correspond directly in writing in this regard.
15In the event that the rental income from 3 C Street and the Investment Properties exceeds the expenses outlined in Order 8 above, the Applicant be entitled to the excess.
16The parties be permitted to correspond directly in writing in relation to property matters.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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Discovery
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