[M] and [M]

[2006] FCWA 9

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: [M] and [M] [2006] FCWA 9

CORAM: MARTIN J

HEARD: 20 & 21 DECEMBER 2005

DELIVERED: 17 JANUARY 2006

FILE NO/S: PT 3062 of 2003

BETWEEN: [M] Applicant/Wife

AND [M]

Respondent /Husband

Catchwords:

Children - residence - shared residence - school to be attended

Contempt

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Legislation:

Family Law Act 1975 - s 65E and s 68F, Division 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Mather

Respondent: Self Represented Litigant

Solicitors:

Applicant: Legal Aid WA Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

1 The issues for determination were the wife's application filed

20 December 2004, which was amended on 2 September 2005. The respondent's response was filed on 15 February 2005. Also before the Court, were two contravention applications filed by the husband on 19 and 22 September 2005.

2The proceedings concerned parenting orders in relation to the two children of the parties, boys aged six and four years.

3At trial, both parties had filed minutes of proposed orders, the wife on 16 December 2005, and the husband on 7 December 2005. Both parties' positions had substantially changed close to trial, and this also meant some of their affidavit evidence did not really support the orders now sought. The wife had previously proposed the children reside with her during school weeks, and the husband had proposed the children resid e with him, preferably from Sunday

to Friday each week, or alternatively, from Sunday to Wednesday or Thursday in intervening weeks.

4His minute of proposed orders filed 14 December 2005, extraordinarily, suggested that the wife have only supervised "access" to the children on Saturdays, because of what he said were ongoing threats to him, but in the year 2008, he proposed that the children reside with him from 9:00 am Sunday to 3:00 pm Friday, and in 2009, on the alternating Sunday to Wednesday or Sunday to Thursday arrangement, with the balance of their time being spent with the wife.

5I made it clear at the commencement of the proceedings that I was not prepared to countenance any order for supervised contact, not only since the application was made so close to trial, but also because it was apparent that it is not necessary, in the interests of the children, for their contact with their mother to be supervised.

6There was no dispute, in the end, that the parties should have shared residence of the children.

7It was agreed that the children would reside with the father from 9:00 am Sunday to at least Wednesday of each week and otherwise with the mother. The mother proposed that the children reside with her from 9:00 am or the commencement of school on Wednesday each week. The father's preferred position was that the children should reside with him from 9:00 am Sunday to 3:00 pm Friday in each week, with his alternative position being that the children reside with him from 9:00 am Sunday to 9:00 am Thursday in one week, and from 9:00 am Sunday to 9:00 am Wednesday in the intervening week.

8There was also an issue as to which school the children should attend. The elder child has been presently attending [a college]

and the husband wants both children to attend that school, but the

wife sought an order that the parties enrol the children for school and kindergarten at [a suburban primary school] commencing this school year.

9There were some other minor issues which are referred to in my conclusion.

Background

10 The husband is a property consultant aged 57 years. The husband had been a civil engineer for about 30 years, but in October 2002, commenced employment with his present employer, [a real estate company]. He was born [overseas]. The wife is [a

musician], aged 39 years. She was born [overseas]. The parties married, [overseas], in March 1999. The two children of the marriage are [J], born June 1999, and [A], born July 2001.

11 The wife has a child from her first marriage, [N], aged 17 years. The child resided with the parties during their marriage, and now resides with the wife. He also attends [the college] and will be doing his TEE this year. The husband has five adult children of his previous marriage, aged between 22 and 30 years, two of whom live in Western Australia, and the rest in [the eastern states].

12 The parties separated in May 2003, and in June 2003, the wife moved, with the children, from the former matrimonial home, to rental accommodation [in the same suburb].

13 The wife obtained an interim violence restraining order against the husband. Her evidence is she left the husband because of his behaviour to her and her son. She commenced proceedings in this court on 29 May 2005, seeking orders relating to financial matters.

14 On 10 July 2003, it was ordered, by consent, that the husband be at liberty to telephone the wife to discuss child welfare matters and that he have reasonable contact with the children at such times as may be agreed.

15 On 7 August 2003, the wife's application for a violence restraining order was dismissed after a hearing extending over two days, but a misconduct restraining order was granted in favour of the child [N].

16 On 24 September 2003, interim parenting orders were made, by consent, specifically providing out that the children were to reside with the husband for 45% of the time.

17 On 3 December 2003, following a conciliation conference, consent orders were made finalising both the applications for parenting orders and property settlement. The wife was to transfer her interest in the former matrimonial home to the husband upon the husband paying her the sum of $41,000. In relation to the children, the children were to reside with the husband for 45% of the time:-

"(a) in a 2 weekly cycle as follows: (i) in week 1:

(A) from 6.00pm Wednesday to

8.30am Thursday;

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(B) from 6.00pm Thursday to 12 noon Sunday.

(ii) in week 2:

(A) from 6.00pm Wednesday to

8.30am Friday;

(B) from 12 noon Saturday to 12 noon Sunday.

(b) for the second half of the July term school holidays and each alternate term school holidays thereafter from 12.00 noon on the middle Saturday to 5.00pm on the Friday immediately preceding the commencement of school, with weekend contact being suspended during such periods;

(c)for the first half of the October term school holidays and each alternate term school holidays thereafter from 5.00pm Friday immediately following the cessation of school to 12.00 noon on the middle Saturday, with weekend contact being suspended during such periods;

(d) in 2003/2004 Christmas School holidays and each alternate Christmas school holidays thereafter, for the first half of the Christmas school holidays, with weekend contact being suspended during such periods;

(e) in 2004/2005 Christmas School holidays and each alternate Christmas school holidays thereafter, for the second half of the Christmas school holidays, with weekend contact being suspended during such periods;

(f) on the children's birthdays, for a minimum of 2 hours if occurring on a school day, and if occurring on a weekend or during school holidays for 1/2 of the day, or alternatively the father and mother to agree to a joint

(Page 6 )

birthday party for the child which they both may attend;

(g) on Christmas Day in 2003 and each alternate year thereafter from 12 noon Christmas Day to 12 noon Boxing Day;

(h) on Christmas Day in 2004 and each alternate year thereafter from 12 noon Christmas Eve to 12 noon Christmas Day;

(i) on Father's Day from 10.00am until 4.00pm; (j) on the husband's birthday at such times as

may be agreed;

(k) on the children's birthday at such times as may be agreed;

(1) reasonable telephone contact and contact by letter, email and facsimile (if email and facsimile facilities are available); and

(m) such further or alternative contact as may be agreed between the parties.

9. The children otherwise reside with the wife.

10. The husband and the wife be responsible for the children's day to day care, welfare and development when the children are in their care.

11. In the event that either the husband and wife are unable to supervise the children for a significant period of residence they offer the other the option of caring for the children for such a period.

12. The proceedings otherwise be dismissed.

13. The Family Court counselling service supervise the residency arrangements for a period of 12 months."

18 The parties were divorced on 25 April 2005.

19 In June 2004, the wife's mother had arrived from [overseas] to live with the wife for 12 months and assist her.

20 On 16 June 2004, there was a confrontation between the parties and the husband claims the wife was abusive at changeover and threatened him with an iron rod.

21 On 30 June 2004, there was a confrontation between husband and the wife's boyfriend, [Mr C], who stood in front of the husband to prevent him entering the wife's home.

22 On 1 July 2004, the wife obtained another interim violence restraining order, with the proceedings eventually being adjourned to November 2004.

23 On 9 August 2004, the husband filed a contravention application against the wife which was adjourned. The husband eventually withdrew this application, the arrangement being the wife would withdraw her restraining order application.

24 On 1 November 2004, the wife had [surgery] which was successful. During the period of hospitalisation, she was unable to look after the children for about a week, and they were cared for by the husband. The wife had to borrow the money to pay for private health insurance from a woman friend.

25 In December 2004, the husband requested the Department for Community Development to intervene between [J], the applicant and her mother. However, "he does not imply that [J] is being mistreated by his mother".

26 The wife commenced proceedings on 20 December 2004, seeking to vary the parenting orders. On 10 March 2005, the proceedings were adjourned generally because the presiding Magistrate was not satisfied that there had been a sufficient change in circumstances to justify variations of the orders of 3 December

2003. The wife filed an appeal against that determination, which

eventually was not proceeded with.

27 On 29 December 2004, the husband's application for a misconduct restraining order against the wife's mother was dismissed.

28 On 2 April 2005, there was an incident involving the husband and [Mr C].

29 On 5 April 2005, an interim violence restraining order was granted against [Mr C] in favour of the husband and the children. The husband was not successful in obtaining confirmation of the order on 20 June 2005, and was, in fact, charged with threatening [Mr C] with a weapon, a knife, on that day, which was dismissed on 24 November 2005, the wife claiming it was because [Mr C] was hospitalised and could not give evidence. The wife's evidence is the husband accused her, in front of all the children, of being a whore, which is denied by the husband.

30 On 20 April 2005, the wife obtained an interim violence restraining order against the husband.

31 On 2 May 2005, the wife moved into a home [in the northern suburbs], which she had purchased.

32 In June 2005, the wife's mother returned [overseas] and in the following month, the wife's father arrived from [overseas] to help her. He was still in Western Australia at the time of trial, and apparently intends to stay until April 2006.

33 On 7 June 2005, the parties attended a conciliation conference. The conference note says - "It was agreed however that [J] will commence attending [the local primary school] from the commencement of the next school term". At that time, both parties were represented by solicitors. However, on 15 June 2005, the husband wrote to the Court withdrawing his consent.

34 On 13 October 2005, the husband alleges the wife "abducted" [A] from his care, dragging the screaming child into her car. This issue was not pursued at trial.

35 On 19 October 2005, the wife's violence restraining order against the husband was confirmed, and remains in force for nine months from that date.

36 On 7 November 2005, I heard an application by the husband to vacate the trial date because he did not wish his holiday residence period with the children to be affected. I dismissed that application, mainly because this was an issue that should have been resolved at the time the matter was lis ted for trial.

37 On 28 November 2005, the wife had further [surgery], but was only hospitalised for a day. The children were again cared for by the husband during her hospitalisation.

38 At the conclusion of the hearing, on 21 December 2005, I made orders to provide for the summer holiday arrangements pending judgment. The children were to be with the parties as follows:-

(a) with the father from 21 December 2005 until

8.30pm on Christmas Eve;

(b) with the mother from 8.30pm on Christmas Eve until 1.00pm on Christmas Day;

(c) with the father from 1.00pm Christmas Day until

9.00am Monday 2 January 2006;

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(d) with the mother from 9.00am Monday 2 January

2006 to 9.00am Monday 9 January 2006;

(e) with the father from 9.00am Monday 9 January

2006 until 9.00am Monday 16 January 2006;

(f) with the mother from 9:00 am Monday, 16 January

2006, until 9:00 am Monday, 23 January 2006.

39 I have set out the extremely acrimonious, and lengthy, history of the conflict between the parties as their poor relationship, and response to this, has some relevance to my determination.

Proposals of the parties

The mother's proposals

40 The wife's proposals for the shared care of the children, are based on a number of factors. During this year, [J] will be in Grade

1 and has been attending pre-primary school. [A] will be attending

kindergarten, but not on a full-time basis.

41 The wife's employment involves teaching [music] at schools and for some of the time, contract employment as a [musician]. During 2005, the wife was teaching mainly at a [private school], for one day per week.

42 The wife has had several occasions where she was involved with [her employment] during time she would have the care of the children, and she accepts that this is why she has required the assistance of her parents as it is practically and financially difficult to arrange babysitters, although she has a girlfriend who can help out.

43 In 2006, she has been successful in obtaining employment at [the private school] for very full days on Mondays and Tuesdays of each week during school terms, and this was really the basis of her proposal that the father have the care of the children on Mondays and Tuesdays. This obviously fits in with his quiet days at work and is a sensible solution.

44 During this year, she is uncertain of how much involvement she may have [with contract employment]. She applied for a permanent position which became available in November, but was unsuccessful. The times at which she could be required for [work as a musician] work vary as day time rehearsals are involved and, often, performances are on Friday and Saturday night. If she is working with [a contract], her financial position is substantially eased and she can afford to pay babysitters.

45 She also had some pupils at home, the lessons being on Saturdays. She is not keen on having pupils at home as her home is so small. The husband's position is that, in fact, her commitments have been more significant than this.

46 She accepts that the changeover should be at 9:00 am on Sundays as she has no objection to the children attending church with their father.

47 However, she would like to have the care of the children on Wednesdays, when she does not expect to be working, which the husband doubts.

48 As to the transport arrangements, she is very concerned about the cost to her in time and money in transporting the children between [suburbs]. She had to buy a home in a suburb so far from [the location of the school] because there was no possibility of affording a home in the vicinity of the children's school. [N] has continued to attend [the college], and gets a bus to and from school, which must be a long trip for him.

49 As to the children's school, her case is that it is in the children's best interests to attend a state primary school, the [local primary school], which is very close to her home [in the northern suburbs]. The wife contends this will provide the children with the opportunity to attend a local school and form friendships in the neighbourhood. Apart from the problems of transporting the children between [suburbs], there is also the issue that she does not believe that the father can realistically afford the school fees for the children to continue attend a private Catholic college. The evidence is that the school fees are presently $150 per term for [J], which is a discount rate, the full fees being $359 per term. The fees for [N] are $350 per term. Persons on a pension get a discount and there is a 10% discount if two children are at the school. The wife does not dispute that [J] is progressing satisfactorily at school. She agreed to the children being enrolled at [the college] and that otherwise it is an appropriate school for the children to attend. She has also accepted that [N] should finish his education there.

50 The wife's home is small and modest, but provides adequate accommodation for the children. Her evidence is she is presently is not involved in a romantic relationship, but is very good friends with [Mr C]. He is seriously ill with cancer and is undergoing major treatment.

The father's proposals

51 The father's case is that it is in the children's best interests to reside with him for the whole of the school week, and that they should attend [the college], the children's present school being in his street. The children ride their bicycles to school accompanied by him.

52 The mother's working commitments are such that it would be disruptive to the children to move over to [her residence] during the school week and the children would be cared for by others anyway. His employment arrangements are such that he has a considerable degree of flexibility, particularly during the week between Monday and Friday. Although he drives to work in [a nearby suburb] anyway, he says his workplace is some distance from the school. He does not have fixed hours and, I gather, works only a few hours each day early in the week, so it would not be convenient to take the children to and from school on his way to and from work.

53 He accepts that during this year, some day care arrangements would have to be made for [A], since he will not be attending kindergarten full-time, but he cannot firm up bookings until these orders are finalised.

54 The father says it is important the children be raised as Christians, and attend a religious school, as have his other children who all attended [the college]. The wife had agreed to this and, in fact, [J] commenced at [the college] after separation, and [A], after the wife's move to [the northern suburbs]. The husband proposes to continue to live in the former matrimonial home and work with [the real estate company], selling mainly in [that area], and sometimes [in his own suburb].

Relevant factors

55 Pursuant to s 65E of the Family Law Act 1975, in deciding whether to make a particular parenting order in relation to children, a Court must regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, the Court must consider the matters set out in s

68F(2) of the Act.

56 Section s 65D of the Family Law Act provides:-

"(d)(2) … a court may make a parenting order that discharges, varies, suspends or revises some or all of an earlier parenting order."

57 It was common ground between the parties that the circumstances had varied sufficiently that the parenting orders

which had been made by consent on 3 December 2003, should be varied. For example, it is a significant change in circumstances that the mother has moved from [the matrimonial home] to [the northern suburbs]. In any event, the orders are totally impracticable, having regard to the parties' work commitments, the frequent changeovers are disruptive for the children, and the issue of where the children are to attend school needed to be addressed.

58 While neither party suggested that, having regard to the children's young ages, their wishes should be taken into account in my determination, it is the respondent's case that the elder child, [J], has often expressed wishes not to go to his mother and there have been serious problems at changeover. There have been many times when he has retained the children until later than the orders provide. The father says the reasons given by [J] are that he has been scared of the mother's male friends and has been a bit frightened of his grandmother, who he says has bullied and teased him. The father has claimed that [J] has said the wife's family and friends are evil.

59 As to the nature of the relationship of the children with each of their parents and with other persons, there is no doubt that the children have a close and loving relationship with both their parents, at least a reasonable relationship with their half brother [N], the mother's parents who have stayed with her, separately, for lengthy periods, and the father's family.

60 As to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other children or other person with whom they have been living, the children are used to living with both their parents on a fairly equal basis. While with the mother, they have had one of their grandparents living with them for most of the time and their half brother. Neither parties' proposals involve the children being separated from either parent for any significant period.

61 As to the practical difficulty and expense of the children having contact with a parent, there are practical difficulties in that the parties will live some distance apart, and also the care of the children has to work around the parties' work commitments.

62 As to the capacity of each parent, or of any other person, to provide for the needs of the children, including their emotional and intellectual needs, both parties obviously accept that the other is capable of caring for all the children's needs in agreeing to almost

equal shared care. The parties have different strengths and both have much to offer the children, for example, the wife with her musical and language knowledge, and the husband with his more scientific background.

63 As to the wife's health, there did not seem to be any issue as to her ability to care for the children despite her recent [surgery]. Her evidence was that she suffers from a minor form of hydrocephaly, so pressure on her brain has needed to be released.

64 As to the children’s maturity, sex and background, and any other characteristics of the children the Court thinks are relevant, the children are of [mixed racial] background, and both were born in Australia. It is therefore important for each parent to have an opportunity to promote their culture and in relation to the wife, at least, the language, particularly since her parents do not speak much English. Both parties have ample opportunity to do this while the children are with them.

65 As to the need to protect the children from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill treatment, violence or other behaviour, either directly or indirectly, the children have witnessed a considerable amount of conflict between their parents. One of the incidents resulted in the husband being subject to criminal charges of threatening [Mr C] with a knife, which were eventually recently dismissed.

66 It is obviously important that the children not witness further conflict between their parents, but I consider this unlikely if the parties do not come into contact with each other. It is therefore desirable for changeover to occur at school where practicable. This is also desirable, to minimise difficulties of [J] moving from one parent to another.

67 As to the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents, both parties are, obvio usly, caring, committed parents who have lost the plot when it comes to dealing sensibly with each other about their children.

68 Both parties have tried to do their best to promote the education of the children. Unfortunately, while with the wife, the child [J] has missed school on quite a few occasions because of practical problems caused by her employment commitments. A total of 41 days was missed in 2005, and while I do not believe pre- primary school is compulsory, this should not have occurred.

69 The wife has wished the children to attend Kumon classes, as [N] did, and the father considers this is not necessary. The mother has met the costs of $90 per month, but [J] has not attended Kumon now for several months. The wife points out that despite the husband apparently being interested in promoting the children's education, none of his other children have attended tertiary education.

70 Both parties have been quite critical of the other in various respects.

71 The wife contends that the husband does not accept that the children have asthma so does not give them their asthma medication. He has not taken their health problems sufficiently seriously, for example, [A] recently spent three nights in Princess Margaret Hospital with low oxygen levels. The father says the mother unnecessarily attends Princess Margaret Hospital with the children. There was no medical evidence before me.

72 As previously mentioned, the mother contends that the father has often failed to return the children to her care at the conclusion of his residence period and more often than not, holds the children until the start of school Monday in the case of [J] and after drop-off at school on Monday in the case of [A]. He also does not encourage the children to go to her at the commencement of the residence period. Her position is the problem does not occur if the husband has an appointment he must attend. The father maintains the problem has lessened as he has been able to discuss the issue with [J], and tell him, for example, "just three sleeps and you come back". I am concerned that the father has involved [J], in particular, too much in these proceedings and given his wishes too much credence, having regard to his age. This is borne out by the husband's inappropriate application that "The children will be interchanged between the parties at the request of each child irrespective of the designated care periods and within reasonable limits of transport and time", although, surprisingly, the wife did not oppose this order, which I am not prepared to make, having regard to the young age of the children.

73 The husband contends that the mother has boyfriends and this has not been in the children's interests. Two boyfriends have been named in the proceedings, [Mr F] and [Mr C]. Apart from the fact that these people have had disagreements with the husband, there was no relevant evidence adduced in this regard.

74 Clearly, the parties have lost sight of the need to provide the children with a stable and calm family life, as both have continued with extensive legal proceedings, including the restraining order proceedings, as well as through this Court. The children have seen police officers involved with the family on several occasions. This is unacceptable. They do not seem to have yet realised that ongoing proceedings will not really solve the problems between them.

75 As to family violence or family violence orders, the only violence restraining order presently in place is dated 19 October

2005. This restrains the husband from contacting the wife, except in relation to the children, with such communication to be via facsimile, text or email.

76 The nature of the violence alleged by the wife was that the husband had grabbed and shaken her on occasion, and after separation, was intrusive to her life, and followed her, for example, if she was visiting her former boyfriend, [Mr F].

77 As to whether any orders are more or less likely to lead to the institution of further proceedings in relation to the children, I consider that none or the orders sought are more or less likely to lead to further proceedings. Despite my concerns, I have little doubt further proceedings will occur and there is a possibility that, should this continue, the father, in particular, may be restrained by injunction from instituting further proceedings.

78 As to any other relevant fact or circumstance, there is the issue of the parties' respective financial circumstances and the mother's ability to fund transport for the children, and the father's ability to pay the private school fees.

79 The mother's evidence is that to 30 June 2005, she earned

$17,260 from her employment and received $10,352 from

Centrelink. Her taxable income was $26,476. She expects to earn more this year, but may have to repay some money to Centrelink since the husband has been successful in receiving some monies from that source. She should clear $400 per week from [teaching at a private school].

80 As a result of his change in career, the husband's earnings dropped from what, in recent years, was said to be a range of

$77,000 to $194,000 to a gross income of $26,000, the husband

says, in 2003, about $37,219 in 2004 and about $35,688 in 2005. The husband has not lodged tax returns for 2005 and 2005. He admits that presently, on his evidence, his expenses exceed his

income, but he is hoping his income will increase once the arrangements for the care of the children are more stable. He presently has debts totalling $19,600. Surprisingly, the husband has filed documentation criticising the wife for apparently spending more than she earns.

81 From 1 September 2005, the wife has been assessed to pay the husband child support of $37.42 per week. The wife's home is worth about $236,000. She has had a struggle to meet mortgage payments, but has done it. The husband's home is worth about

$640,000 and is nearly unencumbered, so the husband is in a much

better financial position than the wife.

82 Any other relevant facts are referred to in my conclusion.

Conclusion

83 The two principal issues to be determined are, to a considerable extent, interrelated, in that the arrangements for the care of the children are interconnected to the issue of whether the children are to attend the [local primary school] or [college].

84 I am satis fied that, having regard to the children's young ages, any wishes they may have should bear no weight. I am satisfied that both children have a good relationship with both their parents, although the child [J] may be slightly closer to his father than his mother. Both parties are clearly reasonably capable parents. The practical difficulties in the arrangements for the children are, to some extent, as a result of the mother moving some considerable distance from the parties' former home, but, in any event, the arrangements for the children would be substantially affected by practical considerations, having regard to the parties' respective working hours and commitments.

85 It is therefore to the parties' credit that they have largely agreed a suitable arrangement for the care of the children, involving the children staying with the father during the day on Sundays and on Mondays and Tuesdays.

86 As to the attitude of the parties to the responsibilities of parenthood, on the evidence, both parties may appropriately be subject to some criticism. As to the mother, even though [J]'s attendance at pre-primary school was, presumably, not compulsory, it was unacceptable for the child to miss so many days of school last year because of the mother's work commitments, when with some reasonable cooperation, arrangements could have been made for transporting the child to school. The wife has obviously had to

rely, to a considerable extent, on the help of others to care for the children, mainly because of her [work] commitments, and it is fortunate that she has had the assistance of her parents in this regard. However, it seems that this will not continue beyond April

2006.

87 The father, while an enthusiastic and committed parent, obviously has some difficulty at times in arranging his work commitments around the care of the children. However, the position should be eased with the change in the arrangements, and particularly next year when [A] will be attending pre-primary school.

88 I am concerned about the respondent's attitude to the mother, for example, in maintaining that he is the superior parent in relation to medical and educational issues, when this has not been borne out by the evidence. I am also concerned that he has been disrespectful of the mother, and intrusive into her life.

89 Both parties deserve criticism for being overly litigious, and involving the police in the presence of the children. It is no wonder that both of them have had practical difficulties in the care of the children, including limitations on their income, as they have been involved in so many different proceedings in different courts. It is of great importance that matters be allowed to settle down for a time, but I note that the husband has already filed another application since the trial.

90 I am not satisfied on the evidence, that it is in the children's best interests to reside with their father from Sunday morning to Friday after school. Despite the fact that there are some benefits of having the same arrangement each week, I am also not satisfied that the children should return to their mother on Wednesdays as she proposes.

91 Having regard to the parties' previous agreement that almost equally shared care is appropriate, I have determined it is in these children's best interests to continue to spend, as far as possible, equal time in the care of both their parents. To effect this during school term, I have concluded that the children should, in the long run, return to their mother after school on Wednesdays in one week and after school on Thursdays in the intervening week. This will mean that the mother will still be involved in transporting the children for less than half the time until [A] commences pre- primary school. During this year, the change over will have to be, in reality, at the commencement of school on the Wednesday and

Thursday respectively, as the mother will have to collect [A] from kindergarten earlier than collecting [J] from school, but once both children are at school, next year, the change over is to be at the conclusion of school on Wednesdays or Thursdays.

92 There was little issue as to the school holiday arrangements, apart from the fact that the mother sought that the parent whose period with the children was ending should deliver the children to the other party, and the father sought the reverse. Little turns on this, but I accept the wife's proposal, as it may reduce problems at handover. The husband had sought he also have the first half of the Christmas school holidays, but I do not accept this would be fair, unless the mother otherwise agreed.

93 The father also sought that if the mother is in Western Australia he have Sundays with the children so they can attend church, which he says they enjoy. The wife would like to have the opportunity to go away so I am not prepared to limit the mother in this regard. In any event, the father will have the children on all but the first Sunday of mid year school holidays. This is why I have provided for him to have the second half of school holidays during the year.

94 As to which school they should attend, while I have concerns about the father's ability to fund the children's attendance at a private school, the family has had an ongoing connection with the school, and the mother was prepared for the children to attend there, even after separation. With whichever parent the children are residing, the other parent is going to have to undertake significant travel. It was the mother's decision to move, some distance from her and the children's former home.

95 I have therefore concluded that it is in the best interests of the children, to attend school at [the college], but only if the father fully meets the school fees, as he claims he will do. The fees are quite modest, even if the full amount is paid, but the mother should be under no obligation in this regard, partly because of the cost of the additional travelling she has to undertake. However, both parents should equally meet other school expenses, such as books and uniforms as, presumably, they, to a considerable extent, would be required whichever school the children are attending.

96 There should obviously be a communications book to, hopefully, facilitate communication between the parties.

(Page 19)

Contravention application

97 Before me was the father applications filed 19 September

2005, claiming that the mother had contravened parenting orders. The application of 19 September 2005, claimed that the mother had refused to hand over one of the children to the father on 3

September 2005, at the commencement of his residence period

without reasonable excuse.

98 Pursuant to the orders of December 2003, the father's residence periods were on a two weekly cycle as follows:-

…

(ii) in week 2:-

(A) from 6:00 pm Wednesday to 8:30 am

Friday;

(B) from 12:00 noon Saturday to 12:00 noon

Sunday.

99 It is not in dispute that the children were to reside with the husband during these periods in the week commencing 29 August

2005.

100 On 30 August 2005, the husband was telephoned by the wife's then lawyer, Michael Berry, who advised that the children would not be released to him on Wednesday as [A] was not well. It would not be possible to have the children on Thursday.

101 On Friday afternoon, 2 September 2005, Mr Berry called to say the children would not be coming on that day either, and [J] would possibly be released on Saturday afternoon at 2:00 pm. The respondent had said this was unacceptable as he had a "home open" at that time. The wife telephoned him a few minutes later to say he could have [J] at 6:00 pm, but not [A].

102 At pickup, the father had asked to pick up [A] at 10:00 am on Saturday morning as he had to take [J] to a children's party between 10:50 and 12:30 pm. He had not been permitted to take [A] at 10:30 am. He called for police assistance, but it was not until 12:30 pm the police arrived and [A] was released to him at

12:40 pm.

103 What the husband's affidavit evidence did not say was that [A] was suffering from a viral illness for which he had attended Princess Margaret Hospital on 29 August 2005, and was held overnight. In fact, the father had visited him in hospital. The child had had a previous admission on 2 August. The wife's case was

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that it had not been agreed that [A] would be collected at 10:30 am, and that she had asked the father to wait until Monday to take the child.

104 In these circumstances, I am not satisfied that the mother has intentionally failed to comply with the order (which requires a handover at midday anyway). The application will therefore be dismissed.

105 The contravention alleged in the application of 22 September

2005, was that the child [J] had been withheld from school for several days. This was the case, and it should not have happened, but there was no order requiring the mother ensure the child attend school.

106 The order allegedly breached was paragraph 10 of the orders of 3 December 2003, which provides that "the husband and the wife be responsible for the children's day to day care, welfare and development when the children are in their care". I do not accept that the wife's conduct could have breached this general order, so that application will be dismissed.

Proposed orders

1. All previous parenting orders be discharged.

2. The children, [J], born in June 1999, and [A] born July

2001, reside with the parties as follows:- (1) With the respondent father:-

(a) During school terms in 2006:-

(i)	from 9:00	am	Sunday to	the
conclusion	of	school	and

kindergarten on the following

Wednesday, in one week, and to the

conclusion	of school	on	the
following	Thursday	in	the

intervening week, commencing the

first Wednesday of the first school

term;

(ii) if [A] is not attending kindergarten on any Wednesday or intervening Thursday respectively, the applicant attend at the school to collect him at

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9:00 am on that day, and otherwise be responsible for the collection of the child from kindergarten on those days.

(b) In 2007, and thereafter, from 9:00 am Sunday to the conclusion of school on alternate Wednesdays and to the conclusion of school on the intervening Thursdays, commencing the first Wednesday of the first school term.

(2)	Duri (a)	g school holidays:- the children reside with the respondent
father for the second half of the term school
holidays each year from 9:00 am on the middle Sunday of each holiday period;
(b)	for the 2006/2007 summer school holiday period and each alternate year thereafter,
with the respondent father from 12:00 noon on the day half way through the school
holiday period, to 9:00 am on the Saturday preceding the resumption of school, such
period to be calculated from the day after the break-up of school to the day before the resumption of school;
(c)	for the 2007/2008 summer school holiday period and each alternate year thereafter,
with the respondent father from the break-up of school to 12:00 noon on the day half way
through the holiday period as calculated pursuant to para (b) hereof;
(d)	in any event, with the respondent father from 12:00 noon Christmas Day to 12:00
noon Boxing Day in each year, and with the applicant mother from 12:00 noon on

(c) For the purpose of handover, the respondent collect the children from the applicant's home on Sunday, and the respondent deliver them to the children's school at the commencement of school on Wednesday or Thursday respectively.

n

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Christmas Eve to 12:00 noon on Christmas

Day.

(3) On the children's birthdays for at least two hours if occurring on a school day and for at least four hours if occurring on a weekend or during school holidays;

and with the applicant mother at all other times.

3. On Mother's Day, the children are to remain in the care of the applicant mother until 5:00 pm.

4. For the purpose of the holiday arrangements pursuant to paragraph 2.(2) hereof, the parent whose residence period is ending is to deliver the children to the other parent's home at the conclusion of that residence period unless alternative handover arrangements are agreed from time to time.

5. The applicant mother be entitled to have another adult or adults with her during any handover of the children, and may appoint any nominee to attend any handover on her behalf, and to convey the children to and from any handover, provided the adult or adults are known to the children.

6. By consent:-

(1) Each party be entitled to contact the children by telephone at reasonable times when the children are residing with the other parent.

(2) The applicant mother and respondent father be responsible for the children's day to day care, welfare and development when the children are in their care.

(3) If either child suffers any significant injury or illness, the parent with whom the child is with at that time will inform the other parent without delay of the nature of the injury or illness and the name and address of any health professional to whom the child has been referred.

(4) The parties maintain the same general practitioner (presently Dr Dimitri Batalin of 138 Bagot Road, Subiaco), for the children for medical purposes, and

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both parties comply with the recommendations of the children's treating doctors, and provide the children with any medication prescribed for either child in accordance with the prescription.

7.(1) The parties do all things necessary to enrol the children for school or kindergarten at [the college], with effect from the commencement of the school year in 2006.

(2) The respondent father be solely responsible for meeting the children's tuition fees for attendance at [the college], and, by consent, this sum not be taken into account in assessing the parties' respective child support liabilities.

(3) The parties are to be equally responsible for other school expenses of the children, for example, uniforms, books and excursions.

(4) In the event that the respondent father fails to meet the fees of the children for attendance at [college] within one school term of the date due, the parties do all things necessary to enrol the children for school or kindergarten at [the local primary school near the mother’s home], and the children thereafter attend that school.

8. The parties each be restrained by injunction from:-

(a) denigrating or permitting any person to denigrate the other party, or relatives and friends of the other party, to, or in the presence of, the children or either of them;

(b) changing the place of residence of the children to any place outside the Perth metropolitan area without the prior written consent of the other party or by order of the Court;

(c) taking the children outside the Commonwealth of Australia without the prior written consent of the other party or by order of the Court.

9. Each party is to keep the other advised of their current residential address and telephone number.

10. The parties communicate by way of a communications book, to pass between them with the children.

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11. In the event that either party is not personally available to care for the children for any period of more than 10 hours when the children are residing with them, the other party be give the first option to care for the children.

12. By consent, both parties attend a Mums and Dads Forever course during the next six months if they have not already done so.

13.(1) As far as practicable, the residence arrangements be supervised for a period of 12 months by a Family and Child Counsellor to be nominated by the Director of the Family Court Mediation and Counselling Service.

(2) The Director of Court Counselling have liberty to direct that the period of supervision be extended for such period as the Director deems appropriate.

(3) The Family and Child Counsellor have liberty to report to the Honourable Justice Martin in relation to matters concerning the supervision of the residence arrangements.

14. The applications, including the respondent father's contravention applications filed 19 and 22 September 2005, otherwise be dismissed.

I certify that the preceding [106] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate