Morton and Morton

FAMILY COURT OF AUSTRALIA

MORTON & MORTON

[2007] FamCA 188

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child
FAMILY LAW - CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Morton

RESPONDENT:

Mrs Morton

FILE NUMBER:

SYF

4276

2006

DATE DELIVERED:

26 February 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

31 January, 2, 8 and 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Doolan Wagner & Callaghan

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

Orders

Until further order the children T born in January 1994 and L born in May 2000 spend time with the Husband as follows:
1.1During each school term each second weekend from after school on Friday to 6.00 pm on the following Sunday or 6.00 pm on the following Monday if the Monday is a public holiday or pupil free day.
1.2During each school term overnight on one week night per week from after school on the evening of the agreed day until before school the following day (or if not a school day, until 9.00 am).
1.3For half of each of the school holiday periods to be:
1.3.1the second half in each odd numbered year with such period to start at 9.00 am on the middle day of the school holidays and conclude at 5.00 pm on the day prior to the children returning to school; and
1.3.2the first half in each even numbered year with such period to start at 9.00 am on the day after the last day of the school term and conclude at 9.00 am on the middle day of the school holidays.
In this order:
1.3.3“the school holidays” means the school holidays exercised by the school attended by the children from time to time;
1.3.4“the middle day” means the day which is mid way between the first day of the school holidays and the last day of the school holidays including weekends, public holidays and pupil free days.
1.4Orders 1.1 and 1.2 are suspended during the school holidays.
1.5After school holiday periods, the Husband’s alternate weekend referred to in order 1.1 is to start again on the second weekend after the conclusion of the school holiday period and the Husband’s overnight on a weekday referred to in order 1.2 is to start again in the first week after the conclusion of the school holiday period.
1.6In the event that Father’s Day does not fall on a weekend when the children are spending time with the Husband in accordance with these orders then from 9.00 am to 4.00 pm on Father’s Day.
1.7On the children’s birthdays:
1.7.1from after school until 6.00 pm if they fall on a school day; or
1.7.2between the hours of 9.00 am and 1.00 pm if they fall on a weekend day when the children are not otherwise spending time with the Husband.
1.8On the Husband’s birthday:
1.8.1from after school until 6.00 pm if it falls on a school day; or
1.8.2between the hours of 9.00 am and 1.00 pm if it falls on a weekend when the children are not otherwise spending time with the Husband.
1.9At Christmas and notwithstanding any order:
1.9.1from 3.00 pm on 25 December until 3.00 pm on 26 December in 2007 and each alternate year thereafter.
1.9.2from 3.00 pm on 24 December until 3.00 pm on 25 December in 2008 and each alternate year thereafter.
1.10At all school activities, events and functions including tuckshop, meetings, excursions, fetes, social functions, parent teacher interviews and sports and cultural events.
1.11At all other times as agreed.
Until further order the children otherwise live with the Wife including:
2.1From 9.00 am until 4.00 pm on Mother’s Day if it falls on a day when the children are not otherwise living with the Wife;
2.2On the Wife’s birthday from 9.00 am to 1.00 pm if it falls on a day when the children are not otherwise living with the Wife;
2.3On the children’s birthday from after school until 6.00 pm if it falls on a school day when the children are not otherwise living with the Wife and between 9.00 am to 1.00 pm if the birthday falls on a weekend when the children are not otherwise living with the Wife;
2.4At Christmas and notwithstanding any order:
2.4.1from 3.00 pm on 24 December until 3.00 pm on 25 December in 2007 and each alternate year thereafter.
2.4.2from 3.00 pm on 25 December until 3.00 pm on 26 December in 2008 and each alternate year thereafter.
Unless otherwise specified or agreed for the purposes of the changeover from one parent to the other under these orders the Husband is to collect the children from the Wife and return the children to the Wife at the conclusion of his time with the children.
The Husband have liberty to communicate with the children by telephone on no more than 4 occasions per week between 4.00 pm and 6.30 pm.
If either of the parties has been unavoidably delayed and will be unable to collect or return the children at the agreed time for a changeover, then they are to notify the other party by telephone as soon as reasonably practicable.
Subject to emergencies, the Husband must give notice to the Wife if he is unable to spend the specified time with the children under the terms of these orders, such notice to be at least 24 hours before a specified weekend or overnight period and at least 14 days written notice for school holidays.
During the time the children are with the Husband, the Wife may telephone the children at all reasonable times.
Each party must encourage the children to keep in contact with the other parent by telephone and, where available, e-mail.
Each party must as soon as is reasonable in the circumstances advise the other of:
9.1any illness, accident or injury suffered by a child;
9.2any medical or dental treatment provided to a child;
9.3any medication a child is to take whilst the child is in the other’s care including the dosage;
9.4any special dietary requirements that apply to the children;
9.5any behaviour management issues such as unapproved absences from school or home
9.6any matter which is of concern in the day to day parenting of the children which needs to be discussed between parents
and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
The Wife inform the Husband as early as possible beforehand of any special or major event involving the children or in which they are to participate including sports carnival/final, concert, award presentation or any other ceremony or event normally attended by both parents.
The Wife inform the authorities at each of the children’s school:
11.1of the Husband’s residential address and contact details;
11.2that the Husband is authorised to contact the school about the children’s progress and to obtain copies of all school information including newsletters, reports, photographs and details of any school activities; and
11.3that the Husband is at liberty to attend and spend time with the children at all school activities, functions and events;
and this order can be regarded as authority for the school to provide relevant information about the child/ren to the Husband.
The parties notify each other within 24 hours of any change of residential address or telephone number (including mobile phone).
Each party be at liberty to travel overseas with the children during their time with the children provided they give the other party at least 21 days notice of the intention to do so.
The children’s passports be retained by the Wife between trips.
The Wife be solely responsible for making decisions as to the school that each child attends.
Should the parties find they are unable to agree on an issue relating to the long term decisions about the welfare of the children, excluding schooling, they attend a meeting with a family law dispute resolution practitioner and use their best efforts to negotiate an agreement in that respect.
Within 28 days of the date of these orders the Husband vacate the matrimonial home at I and thereafter until further order be restrained from entering in or upon the said property without the express permission of the Wife and the Wife have the right to exclusive occupation of the said property.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SY 4276 of 2006

Mr Morton

Applicant

And

Mrs Morton

Respondent

REASONS FOR JUDGMENT

Introduction

Before me for hearing are applications for final parenting orders. There are also pending proceedings for settlement of property.
The proceedings were commenced by application filed on 16 November 2006 on behalf of the husband. A response was filed on 18 January 2007 on behalf of the wife. The Husband seeks final orders as set out in an amended application filed on 20 December 2006. The Wife seeks orders as set out in an amended response filed on 8 February 2007. There have also been interim applications.
The Husband was born in August 1961 and the Wife was born in August 1962. The parties commenced a relationship in either 1988 or 1989 and were married in April 1992. The Wife contended that the parties separated in July 2004 and the Husband contended that the parties separated in November 2004. The parties still reside in the same residence.
There are three children of the marriage, P born in June 1990, T born in January 1994 and L born in May 2000.
The Wife has two children from previous relationships A who is now aged 25 years and M who is now aged 18 years. These children were adopted by the Husband after the parties were married. The Husband has two children from a previous marriage J who is now aged 22 years and R who is now aged 18 years.
The Husband seeks the following:
1.      That the Wife be restrained from causing the Children, [P] born in June 1990, [T] born in January 1994 and [L] born in May 2000 to live outside the B District of New South Wales.
2.      That the Wife and Father have joint responsibility for making decisions about the long-term care, welfare and development of the Children.
3.      That each parent have sole responsibility to make decisions relating to the day to day care, welfare and development of the Children during any period that the Children live with that parent.
4.      That the Child [P] born [in] June 1990 live with the Husband and spend time with the Wife as agreed between the parties.
5.      That the Children [T] born [in] January 1994 and [L] born [in] May 2000 (hereinafter referred to as “the children”):-
During School Term
5.1Live with the Husband from after school on Wednesday of the first week and each alternate week thereafter until the commencement of school on the following Monday morning (or when the Monday immediately following is a Public Holiday until the commencement of school on the Tuesday);
5.2Live with the Husband from after school on Wednesday of the second week of the school term until 7.30 pm on the Friday evening of that week and in a like manner in each alternate week thereafter;
During each School Holiday period
5.3Live with the Husband for one half of each such holiday period including the Christmas school holiday period as agreed between the parties in writing and failing such agreement:-
5.3.1For the first half of each such school holiday period which commence in years ending in an even number such time to commence at 5.30 pm on the day after the final day of school term and conclude at 5.30 pm on the day representing the midpoint of each school holiday period and;
5.3.2For the second half of each such school holiday period which commence in years ending in an odd number such contact to commence at 5.30 pm on the day representing the midpoint of each said school holiday period and conclude at 5.30 pm on the day prior to the first day of the next school term;
5.4Live with the Husband from 9.00 am til 5.00 pm on Father’s Day each year;
5.5Live with the Husband for a period of no less than two (2) hours on each of the Childrens birthdays in the event that the Children are on that day living with the Wife;
5.6Shall live with the Wife at all other times.
6.      That for the purposes of facilitating arrangements for the care of the Children:-
6.1The Husband or his agent shall collect the Child or Children from the Wife’s place of residence or from the Childs/Children’s school at the commencement of the period of the Children living with him;
6.2The Wife or her agent shall collect the Children from the Husband’s place of residence or the Child’s/Children’s school to commence the period when the Children live with her.
7.      Each parent will provide such consent and authority to allow the provision to the other parent of any medical record/report(s) in relation to the Children as may be required by any medical practitioner(s) treating the Child/Children from time to time.
8.      That each parent provide such consent/or authority that may be required by any school the Children may attend from time to time so as to enable each parent to receive report(s), school photographs or any other notice(s) relating to the Child/Children and to permit both parents to attend the school(s) for special events involving the Child/Children and/or speak with/to the teachers of the Children confirming the school performance of the Children.
9.      That each parent will encourage the child to communicate by telephone with the other parent during any periods in which the Children are living with that parent and shall facilitate all necessary telephone calls of this kind.
10.     That each parent will notify the other of their current telephone number and of any change of address or telephone number within forty-eight (48) hours of such change being effected.
11.     That each parent will give immediate notification to the other of any major health issues concerning the Children which come to the attention of that parent whilst the Child/Children are in his or her care.
12.     In the event that the Child/Children require emergency medical treatment the parent in whose care the Child is in at that time shall notify the other parent of the situation.
13.     That until further Orders each party, [the Husband] DOB: [August 1961]) and [the Wife] (DOB: [August 1962]) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children [T] (DOB: [January 1994]), [P] (DOB: [June 1990]) and [L] (DOB: [May 2000]) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders is removal.
In summary, apart from special days, the Husband is proposing that during the school term in each 14 day period the children reside with him in the first week from after school on Wednesday until the commencement of school on the following Monday morning or the commencement of school on the following Tuesday morning if the Monday is a public holiday being ordinarily for five nights in that week. The Husband proposes that in the second week the children reside with him from after school on Wednesday until 7.30 pm on the Friday. Thus, he seeks seven nights in each 14 day period or an equal time arrangement. In fact he may be seeking more than equal time if an analysis was done of the after school hours involved. The second week proposal is a bit odd. In any event he also seeks half of the school holidays. The Husband did not however, set out what he would seek in the event that the children ordinarily resided with the Wife in Brisbane.
The Wife seeks the following:

Where children live
1.      That the children [P] born [in] June 1990, [T] born [in] January 1994 and [L] born [in] May 2000 (“the children”) live with the Wife.
2.      That the Wife have liberty to relocate to Brisbane with the children.
Responsibility for decision making
3.      That the parents have equal shared parental responsibility to make decisions about the major long term care issues in relation to the children.
Time spent with father
4.      That the Husband spend time with the children at all reasonable times as agreed and failing agreement, as follows:
If the children live with the Wife in Brisbane and the Husband is in Sydney
4.1For the children’s school holidays periods as follows:
4.1.1for the whole of the school break at the end of the first term of each year
4.1.2the first half of the school holidays at the end of the second and third term of each year with such period to start from 7.00 pm after school on the children’s last day of school and concluding at 9.00 am on the middle day of the children’s school holidays.
4.1.3For half of each of the children’s Christmas school holidays to be:
4.1.3.1the second half in each odd numbered year with such period starting at 9:00 am on the middle day of the children’s school holidays and concluding at 5:00 pm the day prior to the children returning to school; and
4.1.3.2the first half in each even numbered year with such period to start from 5.00 pm after school on the children’s last day of school and concluding at 9.00 am on the middle day of the children’s school holidays.

4.1.4At all other times as agreed.

4.2In this Order:
4.2.1“the children’s school holidays” means the school holidays exercised by the school attended by the children from time to time;
4.2.2“the middle day” means the day which is mid way between the first day of the children’s school holidays and the last day of the children’s school holidays including weekends, public holidays and pupil free days.

If the parties live in the same city
In School Terms
4.3Each second weekend from 9.00 am Saturday to 6:30 pm Sunday with such period to conclude on Monday if the Monday is a public holiday or pupil free day.
4.4Overnight on one week night per week from 5:00 pm on the evening of the agreed day until before school the following day (or if not a school day, until 9:00 am).
School Holidays
4.5For half of each of the children’s school holidays to be:
4.5.1the second half in each odd numbered year with such period starting at 9:00 am on the middle day of the children’s school holidays and concluding at 5:00 pm the day prior to the children returning to school; and
4.5.2the first half in each even numbered year with such period to start from 5.00 pm after school on the children’s last day of school and concluding at 9.00 am on the middle day of the children’s school holidays.

4.6In this order:
4.6.1“the children’s school holidays” means the school holidays exercised by the school attended by the children from time to time;
4.6.2“the middle day” means the day which is mid way between the first day of the children’s school holidays and the last day of the children’s school holidays including weekends, public holidays and pupil free days.

4.7Paragraphs 4.3 and 4.4 are suspended during the children’s school holidays.
4.8After school holiday periods, the Husband’s alternate weekends referred to in paragraph 4.3 is to start again on the second weekend after the conclusion of the holiday period and the Husband’s overnight on weekday referred to in paragraph 4.4 is to start again in the first week after the conclusion of the holiday period.

Miscellaneous time
4.9From 9:00 am to 4:00 pm Father’s Day.
4.10On the children’s birthdays:
4.10.1from after school until 6:30 pm if a school day;
4.10.2between the hours of 9:00 am and 1:00 pm if they fall on a weekend day when they are not with their father

4.11On the Husband’s birthday:
4.11.1from after school until 6:30 pm if a school day; or
4.11.2between the hours of 9:00 am and 1:00 pm if it falls on a weekend when they are not with their father.

4.12At all school activities, events and functions including tuckshop, meetings, excursions, fetes, social functions, parent teacher interviews and sports and cultural events.
4.13At all other times as greed.

Changeover from Mother to Father
5. That, unless otherwise specified or agreed for the purposes of the changeover from one parent to the other under these orders:
5.1the Husband is to collect the children from the Wife and return the children to the Wife at the conclusion of his time with the children;
5.2the parents agree to equally pay the costs of transporting the children to and from the visits with the Husband.

Telephone contact
6.      That the Husband have liberty to communicate with the children by telephone on no more than 4 occasions per week between 4pm and 6.30 pm.
Inability to spend time with children pursuant to terms of order
7.      That if either of the parties has been unavoidably delayed and will be unable to collect or return the children at the agreed time for a changeover, then they are to notify the other party by telephone as soon as reasonably practicable.
8.      That, subject to emergencies, the Husband must give notice to the Wife if he is unable to spend the specified time with the children under the terms of this order, such notice to be at least 24 hours before a specified weekend or overnight period and at least 14 days written notice for school holidays.
Suspension of paragraph 4 in Certain Situations
9.      Notwithstanding paragraph 4 of these Orders, the Husband is not to spend time with the children at the times specified in paragraph 9 and if these times coincide with a time during which the Husband would have been entitled to do so under paragraph 4 then his right to spend the time for that period is suspended.
10.     The Wife is to spend time with the children at the following times:
10.1From 9:00 am until 4:00 pm on Mother’s Day;
10.2On the Wife’s birthday and if it falls during the Husband’s weekend day from 9:00 am to 1:00 pm on that day;
10.3On the children’s birthday from after school until 6:30 pm if it falls on a school day which is a day the children are due to be with their father under this order and between 9:00 am to 1:00 pm if the birthday falls on the Husband’s weekend;
10.4For half of each of the children’s school holidays to be:
10.4.1the first half in each odd numbered year with such period to start from after school on the children’s last day of school; and
10.4.2the second half in each even numbered year concluding 5:00 pm the day prior to the children returning to school.

Resident Parent May Telephone the Children
11.     During the time the children are with their father, the Wife may telephone the children at all reasonable times.
Other Matters
12.     Each party must encourage the children to keep in contact with the other parent by telephone and, where available, e-mail.
13.     Each party must as soon as is reasonable in the circumstances advise the other of:
13.1any illness, accident or injury suffered by a child;
13.2any medical or dental treatment provided to a child;
13.3any medication a child is to take whilst the child is in the other’s care including the dosage;
13.4any special dietary requirements that apply to the child;
13.5any behaviour management issues such as unapproved absences from school or home
13.6any matter of which is of concern in the day to day parenting of the child which needs to be discussed between parents

and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the child to either parent.
14. That the Wife inform the Husband as early as possible beforehand of any special or major event involving the children or in which they are to participate including sports carnival/final, concert, award presentation or any other ceremony or event normally attended by both parents.
15. That the Wife inform the children’s school:
15.1of the Husband’s address and contact details;
15.2that the Husband is authorised to contact the school about the children’s progress and to obtain copies of all school information including newsletters, reports, photographs and details of any school activities; and
15.3that the Husband is at liberty to attend and spend time with the children at all school activities, functions and events;
15.4and this Order can be regarded as authority for the school to provide relevant information about the child/ren to the Husband.

16. That the parties notify each other within 24 hours of any change of address or telephone number (including mobile phone).
17. That each party be at liberty to travel overseas with the children during their time with the children provided they give the other party:
17.1at least 21 days notice of the intention to do so.

18. That the children’s passports be retained by the Wife between trips.
19. That should the parties find they are unable to agree on an issue relating to the long term decisions about the welfare of the children they attend a meeting with a family law dispute resolution practitioner and use their best efforts to negotiate an agreement in that respect.

The Wife’s orders are comprehensive and she has dealt with what should occur if she lived in Brisbane with the children and the Husband lived in Sydney and what would occur if both parties lived in the same city. In the event that the children were to ordinarily reside in Sydney with the Wife she seeks that she be granted the right to exclusive occupation of the former matrimonial home at I and that the Husband vacate the property. The Wife seeks this order pending the sale of the matrimonial home.
I had the benefit of an Answer to Questionnaire completed by both parties (Exhibits A and B).
I also had the benefit of a report by a Family Consultant.

Parenting - relevant principles

Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for the child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. The parents may exercise the responsibility either independently or jointly.
However, by s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think is proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with and includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
The 13 additional considerations include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted, then I must determine without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I was satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent and if both conditions are satisfied then consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60CC and s 60B. In determining the second matter, namely whether it is reasonably practicable for the child to spend equal time with each parent I am required to consider the matters in s 65DAA(5).
If I was satisfied that the presumption of equal shared parental responsibility applied but that an order should not be made for the child to spend equal time with each parent, then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent and if both conditions are satisfied then consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter, namely whether it would be in the best interests of the child to spend substantial and significant time with each parent, I have to apply s 60CC and s 60B In determining the second matter, namely whether it is reasonably practicable for the child to spend substantial and significant time with each parent I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
For a discussion of the relevant provisions of Pt VII of the Act see Goode and Goode [2006] FamCA 1346.

Background

The Wife contended that the parties commenced living together in April 1988. As I understand it, the Husband contended that the parties commenced living together in about 1989.
At the beginning of cohabitation the Husband commenced to live with the Wife in a home which she owned at F. The children A, M and J also resided with the parties. The Husband’s daughter R resided with her mother.
The child A commenced at K Primary School at V before moving initially as a full private fee paying student to L School at D. The child completed her secondary education at L School on a full bursary. She now undertakes administration work for two separate car yards on the north shore of Sydney. The child J attended R Primary School at C and then commenced at S School at M before commencing to reside with her mother in B. She completed the Higher School Certificate at M High School and is now employed by a Bank. The child M attended R Primary School at C before completing her Higher School Certificate at C College. She is now employed by a real estate agent. The child R lived with her mother during her childhood and is now in receipt of government assistance.
At the commencement of cohabitation the Husband was conducting a business owned and operated by P Pty Ltd and he continued in this role during the marriage.
During the marriage the Husband worked long hours on week days in addition to working on Saturdays. He said “I earn the primary income and [the Wife] was the primary homemaker and carer of the children”. Elsewhere he said that throughout the marriage and following separation he worked long hours so as to provide for the Wife and the seven children.
The Wife gave evidence that the Husband is very work conscious and during most of the marriage he spent seven days a week from early in the morning till late at night at work. She contended that she has always been the primary carer of the children. She arranged their school and extra curricular activities including sports, medical, dental, friend’s parties and took them to and collected them from these activities and events. She contended that most of the time the Husband was at work by the time the children woke up in the morning and they were in bed by the time he came home at night. The Husband was rarely home for dinner. The Wife gave evidence, which I will not repeat, about the involvement of the children in sporting activities and the assistance which she gave to them.
I accept the Wife’s evidence in relation to the Husband’s hours of work during the marriage relationship and her responsibility for the care and support of the children. For example, in his affidavit of 26 January 2007 the Husband contended that in about May 2006 he cut back his hours of work so as to be available for the children to an even greater extent and that he presently works 10 hours each week day. The inference I draw is that even according to the Husband’s evidence prior to May 2006 he was working longer than 10 hours each week day. Thus, the probabilities are, as the Wife contended, that when the children were younger the Husband had left for work before the children got up and he returned home from work after the children had gone to bed. In a letter the Wife wrote on 7 December 2006 to the solicitors for the Husband she contended that the Husband was in the habit of working on average some 12 to 15 hours per day seven days per week.
The child P was born in June 1990.
The parties were married in April 1992.
The child T was born in January 1994.
The Husband said that he does not enjoy a good relationship with the children’s maternal grandmother, Mrs R. The Husband contended that for a period of around 10 years from 1989 to 1999 the Wife did not have any contact with her mother and nor did the Husband or any of the children. Then in about 1999 the Wife and maternal grandmother recommenced a relationship.
The maternal grandmother gave evidence and she was cross-examined. She is self employed as a real estate trader and currently resides in Brisbane. She is 62 years of age and in good health. She gave evidence, which I accept, that following the birth of each child she visited the Wife and the Husband and the children three to four times a year and the duration of her visits were usually from three to seven days. As the children got older she arranged for the Wife and the children to fly to Queensland to visit her in Brisbane. She contended, and I accept, that the Wife and the children have stayed with her for most of the mid term school holidays for the past 11 years.
The maternal grandmother gave evidence about a conversation she had with the Husband in September 2002. What she said is not important however, she did say, which I accept, that thereafter her relationship with the Husband changed in that she lost affection for him and that it was more circumspect. Obviously the Husband reciprocated this attitude. However, the maternal grandmother continued to provide assistance to the parties.
The child L was born in May 2000.
In 2003 the parties purchased, in joint names as tenants in common, the home at I.
The maternal grandmother paid the deposit and stamp duty when the parties acquired the I home. She has since been repaid. She also undertook the conveyancing in respect of a property at C. She paid for the costs of renovations to the home at C and as well, purchased items of furniture and clothing. She paid for fencing for the I property as there was a dam at the rear of the property and she wanted to ensure the children’s safety. She has also paid for overseas holidays and school fees.
The Husband contended that at the time of the purchase of the matrimonial home he had a discussion with the maternal grandmother to the effect that he asked her whether she would be able to assist in helping to make the mortgage payments for the first 12 months so that he would not be liable for any capital gains tax if he fell behind in the mortgage repayments and could not carry the mortgage in the first 12 months. The Wife contended that the Husband did not specify the 12 month period and that the Husband asked the maternal grandparents if they would provide help if the parties ever needed it.
The Husband contended that following the deterioration of the parties’ marriage “in around 2003” the Wife “commenced talking about moving to Queensland”. In a letter dated 17 October 2006 written by solicitors for the Husband to the solicitors for the Wife it was stated that “My client concedes that for the last four (4) or so years your client has made suggestions of relocating to Queensland” and further it was stated, “Whilst my client understands that your client may wish to relocate to be closer to her mother, his position is very much that if that is what your client wishes to do, then the children are to remain residing with him”. In summary, the Husband conceded that since perhaps 2002 the Wife had spoken to the Husband about relocating to Queensland.

The parties separated in July 2004. At that time the Husband moved out of the parties’ bedroom and commenced to occupy what was described as an adjoining flat.
The Husband contended that in November 2004 the parties’ relationship deteriorated and thereafter they commenced to reside separately and apart although under the one roof in the matrimonial home at I. I have no doubt that the parties had separated some time before November 2004 and that their relationship had deteriorated a number of years before. The Husband contended that he spent approximately eight months in the flat attached to the home. The child M currently stays in this flat.
The Husband contended that in late 2004 the child M had a conversation with the Husband during which she told him that the Wife had said that she was moving to Queensland. As seen, the Husband was aware for some time prior to late 2004 that the Wife wanted to relocate to Queensland.
The Husband contended that in 2004 the child P also resided in the flat for about six weeks.
In December 2004 the Wife with the children T and L went to the United States and Mexico for about four weeks.
The Wife gave evidence that at Christmas the Husband normally has a week off. In December 2004 the Wife and the children were at home for Christmas. The Husband told the Wife a date that he wanted the children. However, when the Wife and the children did return, it was another two weeks before the Husband actually took the children away. It had been proposed to go to Canada as well, however this did not happen because of the Husband’s request. It was two weeks after the Husband’s requested date that he took the children away and the Wife and the children were home two weeks early.
The Husband contended that on not less than five occasions since around 2003/2004 the child P said to him that she wanted to continue to live with the Husband and did not want to move to Queensland. The inference I draw is that the child was aware of the Wife’s desire to move to Queensland.
The Husband contended that from March 2005 onwards the parties took it in turn to care for the children each alternate weekend. I do not accept this. I am satisfied that this arrangement was not proposed until October 2006 or perhaps later.
In July 2005 the parties sold properties at S1 and S2 in Queensland and received a net $350,000. The Husband contended that it was intended that $350,000 from the proceeds of sale would be utilised to reduce the parties level of debt and also meet tax liabilities and also assist to service or reduce the mortgage secured over the title of the matrimonial home. The Wife gave extensive evidence about how funds were disbursed and she was not challenged about what she said. The funds were used to reduce debt and pay tax liabilities and other expenses. However, there remains an issue as to how the Wife spent an amount of $200,000.
In July 2005 the parties attempted a reconciliation when the Husband resumed sleeping in the same bedroom as the Wife, however, this attempted reconciliation only lasted for about two weeks. The Husband sleeps in what is identified as the office when he is at the home overnight, however the Wife contends, and I accept, that he spends many nights away from the home.
In September 2005 the Wife with the children L and T went to Malaysia and Cambodia. For the last three years the maternal grandmother has paid for the Wife and the children to go on an overseas holiday with the maternal grandmother and the Husband has been aware of this.
The child T commenced primary school at R Primary School at C. The parties agreed that the child then commence to attend V School. The child commenced at this school half way through year 4 and finished at this school at the end of year 6. At the beginning of the 2006 school year the child commenced to attend the B School in year 7.
During 2006 the child L attended V School and completed year 1. The maternal grandmother paid the school fees which were around $700 per term plus expenses. The Husband said that he cannot afford to meet the fees at this school, however he is agreeable to the child returning to this school if the maternal grandmother pays the fees. The Husband contended that he made enquiries with O School in N and that the fees are affordable and will be about $457 per annum. The Husband annexed to his affidavit a copy of a letter dated 21 December 2006 from O School in which it is stated that the child L is accepted as a pupil at the school.
The child P completed primary school at R Primary School at C and will complete the Higher School Certificate in 2007 at C College located at W which she attended for the duration of her secondary education.
The Husband contended that in May 2006 he reduced his hours at work so as to be available to care for the children to a greater extent. He said that he presently works 10 hours each weekday and on the weekends when he is not caring for the children he works every second Saturday afternoon. The Husband contended that his daily routine is that he goes to work at about 5.30 am and if it is a school day he returns home at about 6.45 am to get the children up. He then returns to work at around 8.30 am. Around two afternoons per week he collects the child L from school and leaves work at about 2.30 pm to do so. He then returns to work and finishes work at around 7.00 – 7.15 pm.
In July 2006 the maternal grandmother booked tickets for herself, the Wife and the children T and L to travel to Thailand between 18 December 2006 and 24 January 2007.
In August 2006 the Wife withdrew $200,000 from a joint bank account with Westpac Bank. There is an issue as to how this money has been spent.
In about September/October 2006 the child P went to Europe for a four week trip.
The Husband contended that in about mid October 2006 the child T said to him that the Wife and maternal grandmother had said the child had to indicate whether she wanted to live in Queensland and that she did not want to go and wanted to stay with the Husband.
In October 2006 the Wife told the Husband that with the maternal grandmother she was taking the children to Thailand for Christmas. The Husband did not agree and thereafter there was correspondence between the parties’ lawyers. The Husband contended that in late October 2006 he had a conversation with the Wife during which he said that Thailand was currently under military rule and that the government was warning people not to travel to Thailand and that he was also concerned about the threat of a “terrorist attack”. He also contended that he said that he had plans for the children over Christmas and he did not agree to the Wife taking the children to Thailand.
The Wife contended that in October 2006 the parties had mediation and they agreed that the Husband would spend every second weekend with the children. The Wife described this arrangement as “fairly artificial” and that the parties and the children were all living in the same residence. It was meant to provide that when the Husband had responsibility for the care of the children each weekend he would have sole responsibility. However, even during these weekends the children continued to sleep in their own beds at the matrimonial home and the Wife continued to maintain the home and undertake domestic tasks for the benefit of the children. On these weekends the Husband took the children out for meals and to activities such as little athletics. The Wife said that to her observation the Husband did make an effort to spend time with the children on each second weekend and that this occurred on about four occasions before she travelled overseas on 18 December 2006.
The Wife contended, and I accept, that prior to October 2006 the Husband really had little involvement compared to that of the Wife in the lives of the children because of his long hours at work. In his affidavit the Husband said “In around late 2006 pursuant to the formal agreement between [the Wife] and I, I was to care for the children for the weekend”.
In November 2006 the Wife had a part-time position supervising the Higher School Certificate examinations and some examinations did not finish till 5.00 pm. The Wife arranged for the Husband to pick the child L up from school and take him back to work until the Wife could arrive there.
In cross-examination it was put to the Wife that she enrolled the child L in after school care in October 2006 whilst she was working and she said that the child was not enrolled. The Wife rang the school twice and asked for the child to go into afternoon care whenever the child wished to go, which was only twice in 2006.
The Husband contended that in December 2006 he was contacted by C College and a place for the child T to commence in year 8 on 30 January 2007 was confirmed. The fees are $1,095 per annum plus extra curricular activities plus around $700 of additional fees and expenses and $220 for a school camp. The Husband said that he is not opposed to the child T continuing at the B School. The maternal grandmother previously met payment of the school fees at the B School. The Husband said that he cannot afford to meet the fees which to the best of his recollection are in the vicinity of $1,600 per term plus additional expenses. However, he said that he would agree to the child T continuing to attend this school if the grandmother committed to meeting the fees. He said that alternatively he would agree to the child T attending the B School and paying a portion of the fees equivalent to what he would otherwise be paying at C College and the Wife or the maternal grandmother meeting the balance of the fees and expenses in addition to paying the school fees for the child L.
In 2006 the maternal grandmother paid about $9000 towards the school fees of the child L and about $6500 for the fees of the child T.
The Husband gave extensive evidence, which I will not repeat, about the schooling of all children. An inference I drew when reading the evidence was that there was an issue about a religious education. The Husband contended that both parties were baptised Catholics and they were married in the Catholic Church. He contended that the children have primarily had a Catholic education and upbringing. However, I was told that a religious education is not an issue and the issue is one of cost and the ability to pay the fees. The Wife contended, and I accept, that the Husband has always been difficult in relation to the payment of school fees, but they had an agreement that the children would be “properly educated”.
On 15 December 2006 an application in a case was filed on behalf of the Husband in which, in summary, he sought that the parties do all acts and things necessary to enrol the child T at C College or such further high school as may be agreed between the parents. The Husband swore an affidavit on 12 December 2006 which was primarily directed to the issue of schooling.
The Husband contended that on 18 December 2006 he ascertained that the children T and L had been removed from the matrimonial home and gone to Thailand with the Wife and maternal grandmother.
On 18 December 2006 the Husband gave instructions to his solicitor to send a facsimile transmission to the Wife’s solicitors advising that the Husband would be taking holidays from 23 December 2006 and that he desired to take the children on a “camping trip” over the Christmas break. The Husband annexed to his affidavit a copy of a facsimile transmission dated 18 December 2006 from his solicitors to the Wife’s solicitors in which it was stated that the Husband would like to spend as much time with the children as the Wife would agree to as and from 26 December 2006. The copy attached to the Husband’s affidavit does not indicate the time that the facsimile transmission was sent. It was not explained why the request was not made until 18 December in circumstances where the Husband was aware that the Wife proposed to travel overseas.
On 18 December 2006 the Wife, the children and maternal grandmother left Australia for Thailand.
On 19 December 2006 there was correspondence and communication between the parties respective solicitors.
On 19 December 2006 the Husband arranged with the Australian Federal Police to have the children placed on the Airport Watch List.
On 20 December 2006 an amended application in a case was filed on behalf of the Husband in which he also sought that, until further order the parties be restrained from removing the children T, P and L from the Commonwealth of Australia.
The Husband contended that he ordinarily closes the business from about 22 December to early/mid January. The Husband contended that the Wife had taken the children T and L away on holidays for the past three years over the Christmas period “notwithstanding that the only time I have been able to take off work in previous years is from around 22 December until around early to mid January”.
On 22 December 2006 the Wife sent a text message to the Husband in which she stated that she was coming back early to prepare for the hearing if it was not postponed and the children would continue their holiday as planned. After the proceedings were commenced the Wife attempted to arrange for an adjournment of the proceedings until after 24 January 2007. The Wife requested this on a number of occasions both with the Husband’s lawyer and also directly with the Husband. However, the Husband refused to agree. The Wife contended that she was advised by her lawyers that she may suffer a consequence if she did not appear before the Court on 18 January 2007 or 24 January 2007. On 9 January 2007 the Wife changed the return trip via Brisbane on 13 January 2007 and this resulted in a $2,000 penalty.
On 24 January 2007 an amended application was filed on behalf of the Husband in which he sought that the Wife forthwith return the children T and L to Australia and, in particular, the matrimonial home and thereafter be restrained from changing the residence of the children from the matrimonial home and restrained from removing the children for holidays and/or recreational purposes beyond a radius of 200 kilometres from the former matrimonial home. The Husband also sought that the parties do all acts and things necessary to enrol the child L at O School located at N. As well, the Husband sought a number of parenting orders including that during the school term the children live with him from after school on Wednesday of the first week and each alternate week thereafter until the commencement of school on the following Monday morning or the commencement of school on the following Tuesday morning if the Monday is a public holiday.
On 19 January 2007 a response to an application in a case was filed on behalf of the Wife and she sought on an interim basis that the children reside with her in Brisbane. The Wife sought as interim orders the orders which she also seeks as final orders. The Wife had returned to Australia.
On 24 January 2007 the following orders were made by a Judicial Registrar:
1.      I order that the parties have leave to approach the List Manager and request when the first date available in the Less Adversarial Trial list for an urgent matter would be.
2.      I order that by consent the Wife will surrender to the Registrar of this Registry not later than 29 January 2007 the passports for the children [T] born [in] January 1994 and [L] born [in] May 2000 together with her own passport and such are to be held in the Registry pending further order.
3.      I order that the Wife arrange for the re-enrolment of the children [T] and [L] at [B] School and [V] School and the Wife is to pay the first term fees but the question of who is ultimately to be responsible for such payment is reserved.
4.      I reserve all costs.
5       I note that 31 January 2007 has been allocated as the first day in the Less Adversarial Trial process.
The hearing commenced before me on 31 January 2007. On that day I made an order for the preparation of a family report on the basis that, if practicable, the Family Consultant provide an oral report. The hearing continued on 2 and 8 February 2007.
The Husband contended that the parties have always resided on the B district of Sydney. Initially they resided in a home at F and then at E and for a period of 12 months at C.
The Husband is a self employed tradesman and he operates a business through P Pty Ltd located at N. The Wife contended, and I accept, that during most of the marriage the Husband spent seven days a week from early in the morning till late at night at work and that the hours of work of the Husband were one of the causes of the breakdown of the marriage.
The Wife has always been the primary carer of the children. She arranged for the children’s school and extra curricular activities which included sport, medical, dental, relationships with peers and so on. Most of the time the Husband was at work by the time the children woke up in the morning and they were in bed by the time he came home at night. He was rarely at home in time for an evening meal.
The Husband contended that the parties had been living beyond their means since they acquired the matrimonial home in 2003 and that he “worked hard” to make ends meet. He said that he is now at an age when he cannot continue working the hours that he did previously. He contended that the Wife had not undertaken paid employment during the marriage with the exception of periods when she undertook some limited casual work and occasions when she assisted with answering the telephones for the business a few hours a week.
The Wife contended that the income from the business has always been sufficient to support the family which at times included the seven children. The Wife has undertaken some part time work such as cleaning and more recently as a part time merchandiser for T Company, but otherwise the income from the business was sufficient to pay all liabilities and expenses. The Wife was responsible for the payment of household accounts and thus for this reason she contended she was able to state that there was always sufficient money in what she called a P Pty Ltd account to meet the parties’ needs. However, since separation, and particularly more so in the last 12 months, the Husband has told the Wife that there is insufficient money to meet the parties liabilities. The Wife said that she does not believe this. The home at I was purchased in 2003 and it was only in late 2006 that the Husband told the Wife there was insufficient money to meet the mortgage payment of $7,000 per month.
Since the parties separated the Wife has earned some income from part-time employment with T Company, but she has also continued to make drawings on the P Pty Ltd account.
The Husband gave evidence about his financial circumstances. In his affidavit he said that his weekly income is presently $595 gross and his weekly expenses are presently in excess of $1,822. His income comprises a salary of $291 ($15,080) and rent and telephone tower allowance of $204. His expenses include tax of $100 and the mortgage payment of $1615. The Wife gave evidence that she receives a total weekly income of $876 which includes a salary of $250 gross per week.
The mortgage payments over the former matrimonial home are approximately $7,000 per calendar month and the Husband contended that he cannot sustain the mortgage payments. The mortgage is currently in arrears. The Husband contended he arranged a short term loan through a friend, Mr G, to meet the mortgage payments for three months, however, Mr G is to be repaid by 18 June 2007. Mr G has made three payments. From March 2007 onwards the Husband and the Wife will be required to recommence meeting the mortgage payments.
The Wife contended that the Husband has never in the past suggested that the parties were living beyond their means and were not able to pay everyday expenses including for the support of the children. The parties have always lived a comfortable lifestyle which has never been restricted by a lack of funds. The Wife contended that to her knowledge the business had not had to draw on an overdraft facility for the past five years.

The property at I has two residences on it and a telephone tower. H pays the parties’ rental on the tower of $1,100 per month which is paid directly in repayment of the mortgage. The parties also receive $1,560 per month as rental from tenants who occupy what is called the back house and these funds are also applied towards the mortgage. The parties are therefore required to only pay $4,200 per month. The Wife contended that the parties never had any trouble meeting the mortgage repayment, however approximately three months ago they received a letter from the mortgage provider advising that the mortgage repayments were in arrears.
The business occupies rental accommodation at N. It recently acquired a business of “Loan Ranger” which is a spray painting business. In the year ended 30 June 2005 the business had a total income of $331,218 and total expenses of $306,266. It had a taxable income of $24,888 and the tax was estimated at $7,466.40. According to the tax return the business has not been very successful and it had the following profit/loss:
LossProfit
·30 June 2000  2033  -
·30 June 2001  8110  -
·30 June 2002  688  -
·30 June 2003  -  6196
·30 June 2004  -  4591
Documents prepared by the Company accountant reveal that for tax purposes in the year ended 30 June 2005 the Husband received a gross wage of $15,158 and the Wife received a gross wage of $11,890 being a total of $27,048 gross. This is consistent with the amount of wages the Husband disclosed in his Financial Statement. According to the accountant as at 2 May 2006 the total of the wages of the Husband and the Wife was $21,464.
In order to pay expenses the parties also borrowed money from the Company. According to the accountant as at 1 July 2004 the director’s loan account had a debit balance of $24,379. Then as at 30 June 2005 it was $64,273.23 in debit. Thus in the 12 months ended 30 June 2005 the parties borrowed $39,894.23 from the Company. According to the accountant in the year ended 30 June 2006 an amount of $62,000 was repaid to the Company on 2 May 2006 and thus the amount owed to the Company was $2,273.23. However, further amounts were borrowed being a total of $52,174.18 again because the parties could not pay expenses except from borrowings. The parties were able to fund the borrowings because they were able to pay the Company funds they received from the sale of investment property in Queensland.
In summary, the evidence corroborates the Husband’s contentions as to the current financial circumstances of the parties. This is in circumstances where the Husband for a number of years has been working very long hours. The Husband cannot afford to meet expenses. He has had to borrow funds to pay the mortgage. The parties have received considerable financial assistance from the maternal grandmother including the payment of school fees. The Husband seeks that the maternal grandmother continue to contribute to the payment of school fees if the children continue at the schools they have been attending.
However, in a letter dated 23 October 2006 from the accountant to the Husband the accountant said he was able to estimate what he called “budget figures” and his profit estimate of the company for the year ended 30 June 2006 was $60,026 and the estimated tax liability was $18,008. The accountant also stated that the directors’ loan account balance as at 30 June 2006 was $63,337.18 in debit and that between 1 July 2006 and 13 October 2006 it increased by $17,799.83. Pausing there, the accountant did not indicate whether or not the profit estimate of $60,026 was after the payment of a salary to each of the Husband and the Wife. However, I will assume that it is a net profit and thus, it is after the payment of a salary to each of the parties. This has the consequence, when consideration is given to the profit/loss situation of the company for the financial years ended 30 June 2000 to 30 June 2005 inclusive, that for some reason in the year ended 30 June 2006 there was a significant increase in the net profit of the company. The Husband gave no evidence in chief explaining why this occurred. In answer to some questions I asked, although it was unclear, I gather the Husband was contending that he is currently undertaking a change of direction in the type of work undertaken by the company.
Notwithstanding this increase in the profitability of the Company in his evidence in chief the Husband was still contending that the matrimonial home had to be sold as a matter of urgency because of his difficult financial situation. The situation he contended will worsen because he said he requires surgery to rectify torn tendons in his right shoulder and that he has been advised by his treating doctors that he will be unable to work for three to six months thereafter. He contended he cannot afford to take time off from his employment as he would have no income with which to support the family and meet the ongoing expenses including the mortgage. He stated “I require the former matrimonial home to be sold so that I can undergo my medical treatment”. The Husband proposes that on completion of the sale each party receive $50,000 as a partial property settlement to enable them to secure alternate accommodation pending the final property settlement. As well, he said he would require these funds to enable him to undertake surgery and also meet “the family’s ongoing living expenses while I am unable to procure an income through P Pty Ltd during my recovery period”.
I was provided with a document which set out the contentions of each party in relation to the extent and value of their assets:
Wife’sHusband’s
ValuationValuation
Assets $                $
·The matrimonial home (h/w)  1,300,000     1,500,000
·Proceeds of sale of S property, Queensland (h/w)  -       261,000
·50% of X, Queensland (w)  30,000               nk
·P Pty Ltd (h)  nk                 -
·Caravan and site (h/w)  nk               nk
·Motor bikes (h)  nk          6,000
·BMW motor vehicle (h)  50,000          8,000
·Shares (h)  2,248          3,348
·Wife’s bank accounts (w)  3,000               nk
·Bank accounts (h/w)  2,082          2,082
·Bank accounts (h)  2,500          2,500
·Boat and trailer  1,500             500
·Toyota Hi Lux (h)  nk          8,000
·Interest in AMP Endowment Fund (h)  11,577        11,577
·Interest in AMP Endowment Fund (h)  29,427        29,427
·G Super (w)  nk               nk
·Interest in P Super Fund (w)  nk               nk
·R Super (w)  750               nk
·Sale of shares (w)  10,000               nk
·Sale of motor vehicle (w)  17,000               nk
·Money retained by husband from P Pty Ltd              nk                -
Total1,460,084               nk
Less
Liabilities
·Mortgage on matrimonial home (h/w)  950,000       950,000
·Wife’s loan from the maternal grandfather (w)  13,000               nk
·Loan from Mr G (h)  nk        10,000
·Tax liability (h)  nk               nk
·Loans owing to P Pty Ltd (h/w)  nk               nk
Total (963,000)             nk
Balance$497,084     $       nk
It can be seen that there are a number of matters that have to be addressed before the property proceedings can be finalised. However, if it transpires that the parties have net assts of only say $500,000 then I do not see how the parties would each be able to acquire accommodation in Sydney.

Proposals

The Wife’s primary proposal is that the children ordinarily reside with her in Brisbane.
The maternal grandmother and her husband are the directors of a company B Pty Ltd. The company owns at least three residential properties in the eastern bay side suburbs of Brisbane. The Wife proposes to reside in a home at L owned by B Pty Ltd. She described it as a three bedroom low set brick home with a timber floor. It is about 20 years of age and in good condition. It is situated on a large block of land with a fully fenced yard and has a double garage. The Wife would be able to rent this property at a nominal rent.
The Wife has enrolled the children at Z College at Y in Brisbane which is about five minutes drive from the home at L. The child L has been enrolled in year 2 at the Boys College with is a boys only campus and the child T has been booked into the Girls College and will go into year 8. The Wife described both school as private same sex Christian schools.
The maternal grandmother gave evidence that she has offered to provide the Wife with accommodation on an indefinite basis and at a nominal rental commensurate with what the Wife can afford. She said the home is located approximately 500 metres from Z Boys’ College. Z Girls’ College is approximately 2.5 kilometres from the home. The maternal grandmother is prepared to pay half of the children’s private school fees. She is also willing to assist with the payment of airline fares for the children to travel from Brisbane to Sydney to spend time with the Husband or alternatively assist in the payment of a fare for the Husband to travel to Brisbane. She also said she would endeavour to provide accommodation in one of her rental properties in Brisbane for the Husband to occupy should he decide to stay for any period in Brisbane. She also said that subject to finances it is her intention to assist the older siblings to visit the two children in Brisbane. In the past they have stayed with her and she contended they have enjoyed each others company.
The Wife has no trade or qualification and she has only ever worked part time in casual or unskilled positions. From about 1989 until 2004 she did the book work and accounts for the family business. She also had employment cleaning at the local school on weekends but ceased this when the parties commenced to live at I. During 2006 she obtained two casual positions, one supervising the Census and one supervising examinations at a local school. She was also able to obtain employment two days per week from 9.00 am until 2.30 pm as a part time merchandiser for T Company. She is paid an hourly rate of $17.00 per hour and also her travel costs because she does a lot of travelling between shopping centres. She always aimed to be available for the children before and after school and would like to continue to do this. As well, she would like to ensure that the children undertake extra curricular activities.
The Wife anticipates that at least for the next few years until the child L commences to attend high school her maximum earning capacity would be about $330 to $400 per week. She has applied to Centrelink for benefits but does not anticipate that she will receive any benefits.
When the parties separated the Wife approached the Child Support Agency for child support. However, she did not pursue her application because the Husband’s disclosed income was so low that the amount assessed was about $100 per month.
The Wife gave evidence that she estimates that the cost of financial support for herself and the children is $981 per week. If an amount of $400 for holidays and education expenses is excluded then the estimate of expenses is $581 per week. However, the expenses do not include accommodation expenses such as rent. The Wife currently works two days a week between 9.00 and 2.30 pm and receives $250 gross per week and the family allowance of $69 per week. Her expenses do not include tax. The Wife’s estimate of expenses appears to be very reasonable. I accept that the Wife is in a difficult financial position and that this will continue. Her financial circumstances may improve when the property proceedings are finalised and in the event that the Husband paid a reasonable amount of child support. However the probabilities are that the Wife will continue to be reliant upon financial assistance from the maternal grandmother, whether the Wife resides in Sydney or Brisbane.
The Wife said that if it was resolved that the children reside in Sydney then she would remain in Sydney and would seek to continue to reside in the former matrimonial home pending the resolution of the outstanding matters in dispute between the parties.
When consideration is given to the evidence of the Wife she has set out in some detail what her circumstances are and what her proposals are for the care of the children in Brisbane. As seen, her orders sought were far more comprehensive than those of the Husband and she dealt with what should occur if she lived in Brisbane and the Husband lived in Sydney and what should occur if the parties lived in the same city.
The Husband proposes that the children ordinarily reside in Sydney. The Husband said that he would not be able to relocate to Brisbane because he feels an obligation to remain living in Sydney so as to provide the children P and M with a home and also financial assistance as required. This assumes that from 2008 onwards these children would still be living at home. The Husband said that as well the business operation in Sydney has been established for 24 years and as a result he has contacts and work opportunities as a result of the period of time he has been operating on the B district. The Husband said that he is concerned that if the Wife were permitted to relocate to Brisbane with the children she would not encourage either child to maintain a relationship with or spend time with him and with the other children.
In my view, it is very clear that the Wife has given appropriate consideration to what may happen in the future. However, the Husband simply states that he wants to stay in Sydney and the reasons he gives are at odds with what the evidence establishes. Until the year ended 30 June 2006 the evidence suggests that the business should have been closed. If the Husband ceases work so as to have an operation then I have no idea how he would be able to provide the children P and M with a home and also financial assistance as required.

Report of Family Consultant

Before dealing with the statutory considerations I will set out some of what the Family Consultant reported. I am mindful that it is accepted that the child P will remain in Sydney. During cross examination it was put to the Wife “And you're aware from discussions with P, if not then at least from reading your husband's affidavit material, that P doesn't wish to travel to Queensland?” and she replied:
I was aware of that before the affidavit. Her being in year 12 this year I would never want to move her from anywhere. The only reason I actually put that in my application was that I didn't want her in years to come to think that I did not want her. So I wanted her put in there that she would understand that I do love her and I would love her to go there but it was her decision and that was the reason behind all that.
I am of the view that this was a very reasonable response and that the child should be made aware of what the Wife said.
The Family Consultant said that in his opinion there are a number of factors that should be considered in terms of better or worse outcomes for children when a relocation is being considered being: how to maintain an ongoing good enough relationship with both parents; the impact of logistics, finances and distance; the age of the children; the parenting capacity of each parent; the children's attachment to families, friends and school, community, school friends, peer group and so on; the willingness of the parents to promote a relationship with the other parent across a distance and the willingness of them to provide an environment in which that can occur; particularly in this instance the meaning of the subject children's relationship with their siblings and the impact or otherwise of a relocation on that; the degree to which relocation would assist with or impact on the children's exposure to conflict; the future stability in the sense that if and when a move occurs, is it likely to be a move that's going to be enduring or is it going to be a move that simply leads to another move within a short space of time and therefore clearly destabilises the children.
The Family Consultant said that he interviewed the children in order of age, that is, the children who were living in the house. For my part I had some concerns as to why the child M was interviewed given that she is not a subject of the proceedings and her involvement was never fully explained. I thought that the original intention was that only the children T and L would be interviewed but that did not happen. However, as it transpires it does not really matter.
The Family Consultant said:
[M], within it must have been 30 seconds of sitting in the room, was in tears and was not able to explain initially why she was upset. When she was able to talk she said, "I'm afraid my mother will be angry because she" - that is, [T] - "doesn't want to go to Queensland." In summary, [M] said that she sees herself as the person that takes some of the strain in terms of looking after the younger siblings, that is, they tend to talk to her, and whilst she indicated that she's more than willing to listen to what their problems are, she does from time to time find it emotionally stressful. In support of that she noted that sometimes some of them, and I'm not sure which one she was talking to, would get into her bed in the night and talk to her. She says that she feels a constant pressure to be strong for them.
I might note, your Honour, that almost with every sentence [M] found herself crying and the impression that I got was that of a person who has contained emotion over a long time and this was like turning on a tap and a difficult tap to stop. As much I was trying to make this a forensic exercise, it was very clear to me that what she was seeking and needing was a therapeutic exercise. She wanted to talk to me about her concerns about her mother and she feels her mother right now is very unhappy. She appeared to confirm that there are times when she's felt that that unhappiness has translated into an overuse of alcohol, but as I have said to her, "When I'm Court talking about this I will be stressing that what [M] really saying is that she is concerned for her mother, that she wants a good relationship with her mother and any damage that's been done to their relationship she, like the others, would like the opportunity to repair."
In support of the view that alcohol has from time to time been a problem she described some incidents, and because she was crying it was not clear to me in terms of a blow-by-blow description what she was saying but amongst them was a view that the breakdown of the relationship with [A] arose out of an altercation that might have had some connection with alcohol use. She confirmed that she too had seen the photograph, was aware of anyway the photograph that had the beard, the moustache and the indications of the devil on it, and there was no sense that she approved of that or thought that was a sensible or reasonable thing to do. She advised me that both [T] and [L] love both parents so much and pointed out that [L] is the only boy with a lot of girls. What I think she meant by that was - indeed there are a lot of girls in the family comparatively, he is the only boy, and that perhaps that leads to a view that the relationship with the Husband should be strengthened and maintained.
She feels that her relationship with her mother should her mother go to Queensland will further deteriorate. And then she - I suppose a reasonable word for it would be "disintegrated", that is, the tears became quite copious and the sobs became quite deep, and in the midst of this she suggested that she feels rejected by her mother going to Queensland and suggesting that the two younger ones should go. I would emphasise on her behalf, as she did, that her earnest wish is for every opportunity for her relationship with her mother to be repaired, because as with the other children, this is not a case where the relationship has been poorly since early childhood. It seems to relate to specific events and seems to be connected with the polarisation in the family that is consistent with the breakdown of the parents' relationship. She also pointed out that there has been some degree of conflict in the family for as long as she can remember. That was the end of the interview with her.
She also, I might add, your Honour - she was keen to let me know that she has at one stage -and certainly appears to be a very fine athlete, 800 metres runner and longer, and I think what she was telling me was there are things in her life that she just wants to get on with and that - and like her sibling, she doesn't want to be preoccupied with adult issues.

I do not accept the contentions of the Husband about the Wife. I formed the opposite impression. I am of the opinion that the Wife would ensure that each child maintained a relationship with the Husband whether the Wife resided in Brisbane or in Sydney. Overall, I found the Wife to be more frank and open and she made a number of admissions to me and the Family Consultant in support of the Husband’s relationship and involvement with the children. As well, I am of the opinion that she demonstrated more insight into the needs of the children and their relationships with each parent.
As to the maternal grandmother there is no doubt that, as the Family Consultant said, she calls “a spade a spade”. I accept that in the past things have happened that have made her intolerant of the Husband and as well she may have said or done things that on reflection she regrets. The children are aware of the estrangement between the Husband and the maternal grandmother. However, the maternal grandmother has continued to provide significant financial support both directly and indirectly for the family. Counsel for the Husband in cross examination of the maternal grandmother was seeking an undertaking from her that she would contribute to the payment of school fees if the children continued to attend their current schools. The maternal grandmother also gave evidence that she is willing to assist with the payment of airline fares for the children to travel from Brisbane to Sydney to spend time with the Husband, or alternatively even assist in the payment of a fare for the Husband to travel to Brisbane. As well, she said she would endeavour to provide accommodation for the Husband in one of her rental properties in Brisbane should he stay in Brisbane for any extended period.
The maternal grandmother gave some insightful evidence namely:
You don't wish for [P] to come to live in Brisbane?---[P] is more than welcome in my home or anywhere else she would like to live. She has expressed her decision that she will live with her father. She doesn't want to live with her siblings. I can't force the girl.
Do you agree that if [T] and [L] relocate to Brisbane, that they will be cut off in their relationship from the other children?---No, not at all.
By reason of the distance?---Not at all. [P] is intending at the end of this year when she's finished school to save quickly and go overseas. [M] is 19 in a fully paid real estate job and will be moving on to her own apartment, her own accommodations. So the children will be no worse off and no better off in about nine months' time than what they will be living in Brisbane away from them. Whether it's Sydney or Brisbane, it doesn't matter.
If [the Husband] continues to reside in Sydney, do you agree that their relationship with [him] will be reduced by means of the distance?---I wouldn't think so, if you want my opinion. I would have thought with my assistance in both parties travelling, whether [the Husband] goes to them or they go to him, he would have the opportunity for some good quality time with them that he may set aside which he never has in the past. He's a very busy man. He works long hours, but he may set that time aside for them and be a benefit to them.
I reject the complaints about the maternal grandmother. It is my view that she may be direct but she is supportive and sympathetic to all members of the family and they should be grateful for what she has done and what she is prepared to do.
I am concerned about the attitude of the Husband towards the relationship of the Wife and the children and in particular whether he has contributed to the difficulties that exist between the Wife and the children M and P. In various parts of his evidence the Husband referred to the estrangement of the Wife and the adult children and the child P. The Husband pointed the issue out to the Family Consultant. It was my impression that the Husband does not accept any responsibility for this estrangement nor propose any way that he could contribute to a resolution of it. With respect to the visit to Thailand the Family Consultant said that it has “added considerably to the tensions in the family”. I have some difficulty understanding why this would be so given the history of such trips and the Wife’s notice to the Husband. In any event, the Family Consultant said that the Husband would say that he did not know that certain members of the family were going to go to Thailand and that it came as a surprise to him. I have no doubt that after 18 December 2006 the Husband made clear to the child P his view about what happened. As I have already observed the Family Consultant said that the child P said that she had a good relationship with the Mother prior to the trip to Thailand. I also have no doubt that the Husband has made known to the children his attitude towards the maternal grandmother.
I am required to consider the likely effect of any changes in the circumstances of each child including the likely effect on each child of any separation from either of the parents or any other child or other person including any grandparent or other relative of each child, with whom each child has been living.
This is a very important matter; perhaps the most significant matter and this was made clear by the Family Consultant in response to some questions I asked. I have already set out what the Family Consultant said in relation to the interview with the child T. The Family Consultant also said:
As far as the sort of losses that are not related to family but are related, particularly with [T], to important things at her developmental stage, she has established a peer group within which she gets some succour and which I think is important to her development. It's been pointed out to me that she would develop another sibling group.
My experience has been that children of that age, particularly 13 and 14, get strongly enmeshed with their group and that their groups are developmentally critical to them and that if circumstances force them away from that group, it is commonly a very sad and unhappy experience for them. I am also of the view that with [T], she has found when in the midst of a rather conflicted and distressing situation that her school provides something - her school, her sports, associations at sports, activities and her friends supply something of an anchor and some succour for her.
The Family Consultant went on to say:
The factors that in my mind will not change, that are pretty inarguable and irreducible are this consistent theme throughout the sibling group that they want to maintain the sibling group as near as they can as is. I find it difficult to envisage anything but detriment to the relationship between a father and a son when [L] is 6 years old. You would normally think of those activities and interactions that are good for a developing relationship as including regular frequent interaction about all the important milestone things, doing a bit of homework, being involved in sports, listening to the odd problem, putting to bed, bedtime rituals and so on, and that I think is for me a very potent factor in this matter.
I am of the view that some children when they grow up will look back on the absence of a relationship with a parent, whether it's mother or father, with a sense of loss. There is some supporting evidence for that view. I believe unlike [T] who is of an age where she would be more self-sufficient in being able to relate to a parent across a distance, it is clear to me that [L] at 6 years of age is not at that point. It is not, for example, until children are a little older than that that they are even aware that they have a memory, never mind use it without the assistance of a parent. So if he were to move to Queensland he would need a lot of help from his mother and his mother's associates to maintain a strong and positive memory of his father. I am convinced - - -
What about if he stayed in Sydney and the mother moved to Queensland?---I think it would be very similar. I'm of the view that he loves both of his parents, that at that age - I mean, not quite so much as a 3 or 4-year-old, but he's not yet old enough to really sustain a relationship that doesn't weaken over time without constant and regular interaction. So those for me are the strong factors that would - that seem to me reasonably - that seem to me not reasonably but inarguable and irreducible and I'm not sure how they can be eliminated from the equation. The other side of that is this is currently a family that is at least at the moderate range in terms of family conflict. There is an argument that all of the children are now experiencing considerable stress up to and including the possibility of being traumatised. That might be reduced if they moved away from the home. One option therefore is to move to Queensland to move away from the conflict. If there were other options as a way of helping them get on with their own lives and not be preoccupied and in the vicinity of and being damaged by this conflict, I would suggest that those options should include ones that allow the children to have a relationship with both parents.
In answer to questions I asked the Family Consultant made clear that there are two significant matters he emphasised being the sibling relationship including with the children who are not the subject of the proceedings and the views of the child T about her current circumstances in Sydney.
I am required to consider the practical difficulty and expense of each child spending time with and communicating with each parent and whether that difficulty or expense will substantially effect the right of each child to maintain personal relations and direct contact with both parents on a regular basis. The Family Consultant said:
The other factor, your Honour, is the issue of logistics and finances. Relocation clearly is less of a problem when people can afford regular plane trips, when they can afford to have interactions with their children in both parents' locations; that is, in this instance, for example, hypothetically if [the Wife] were to be in Queensland, it would be ideal if the father could regularly visit the children in Queensland and get to know what their schools are like, what their lifestyle is like, which would clearly facilitate communication between them and the communication would clearly facilitate the development of their relationship. So it is not for me to comment on whether they are in a financial position to do that but I would suggest that it is in this matter really quite an important consideration. The other logistical factors are the two subject children are of school age which would, unless the father can spend a considerable amount of time up there, possibly eliminate interactions with them, direct interactions, in and around their school life.
If the Wife resided in Brisbane then the evidence of the Husband suggests that he would have financial difficulties in meeting the costs of travel between Sydney and Brisbane and would probably rely on what the maternal grandmother said as to the assistance she may provide. Obviously it would be less of a problem if the parties resided in the same city.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs.
The Family Consultant said:
As far as parenting capacity is concerned, and by that I mean simply each parent's capacity to look after children, I did not get any impression that there was any deficit or problem in that regard whatsoever. Indeed both parents spoke relatively highly of each other in that regard and none of the children indicated to me that there were any particular problems.
I do not share the view of the Family Consultant. I have no doubt that the Wife is better able to provide for the needs of the children in all respects. The Wife has given detailed evidence as to her proposal for the care and support of the children in Brisbane. I have no evidence as to the accommodation and support of the children if they resided in Sydney after the matrimonial home is sold.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant.
There is nothing I wish to say about this matter beyond what I have said elsewhere particularly about the child T.
I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
This is an important matter. I am of the opinion that the Wife has demonstrated an appropriate attitude to each child and to the responsibilities of parenthood. I do not have the same view of the Husband. Amongst other things the Husband has given no evidence about his proposal for the care and support of the children when the matrimonial home is sold.
I am required to consider any family violence involving each child or a member of the family of each child. I am also required to consider any family violence order that applies to each child or a member of the family of each child if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must, to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration, ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order. These matters are not relevant.
I am required to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to each child.
This is an important matter. If I made a final order that the children ordinarily reside with the Husband in Sydney and the Wife resided in Brisbane I have no doubt that there would be further proceedings. I do not know where the Husband would live or where the children would go to school, what the Husband’s ability would be to support the children or what would happen to the children M and P. So also if I made an order that the children reside in Sydney with the Wife and the Husband on an equal time basis there may be further proceedings. This is because when the matrimonial home is sold I do not know where either parent would live or where the children would go to school or what would be their arrangements for parenting. I do however have confidence that the Wife, with the assistance of the maternal grandmother, would be able to make appropriate arrangements even if she resided in Sydney.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing further I need to say.

Conclusion

This is a very difficult case. The possible regimes are as follows. The children reside and attend school in Brisbane and spend time with the Husband in Sydney or Brisbane during the school term and during school holidays as proposed by the Wife. The Husband proposes to continue to reside in Sydney and does not contemplate moving to Brisbane. The Husband has not set out what he would seek in relation to the amount of time he spend with the children in the event they were in Brisbane and he was in Sydney.
Another proposal is that the children reside and attend school in Sydney and the Wife reside in Brisbane. However, the Wife does not propose to reside in Brisbane if the children resided and attended school in Sydney. The Wife proposes that in that event she will continue to reside in Sydney.
If the Wife resides in Sydney then the issue is the amount of time that the children spend with the Husband. The Husband seeks an equal time arrangement. The Wife proposes that during the school term in each 14 day period the children reside with the Husband each second weekend from 9.00 am on Saturday to 6.30 pm on Sunday or 6.30 pm on Monday if the Monday is a public holiday or pupil free day and overnight on one night per week from 5.00 pm on the evening of the agreed day until before school the following day. Thus, the Wife proposes that in each 14 day period during the school term the children stay overnight with the Husband on two occasions. The Wife proposes that the children spend time with the Husband on special days and also for half of each school holiday period.
I am of the opinion that the presumption of equal shared parental responsibility does apply. However, I am of the opinion, in the circumstances, that the presumption has been rebutted because I am satisfied that it would not be in the best interests of each child for the parents to have equal shared parental responsibility.
The Wife has always been the primary carer of the children and primarily responsible for attending to all aspects of the day to day needs and requirements of each child. The Husband’s role in relation to the care of the children has not been nearly as significant as that of the Wife. On one view of the evidence the Husband has only assumed a more active role since perhaps October 2006. There is a very high level of conflict between the parties and I have very little confidence in their ability to co-operatively parent the children. They have been in conflict about education. They have been in conflict about travel. The Wife is estranged from at least the child M and perhaps the child P and my impression is that the Husband has relied upon this to support his case without putting forward some constructive proposals for the future or how it may be resolved. I infer that he contends that there is a risk this may happen with the two children. Then the Family Consultant said that this is currently a family that is at least at the moderate range in terms of family conflict, although there is an argument that all of the children are now experiencing considerable stress up to and including the possibility of being traumatised. I note that the Family Consultant did say that this might be reduced if they moved away from the home and that one option therefore is to move to Queensland to move away from the conflict. Finally, with the exception of the arrangements for the care of the children in Brisbane I do not know where the children would reside or what schools they would attend once the matrimonial home is sold. This may lead to further conflict.

I have come to the conclusion that it is in the best interests of both children that they primarily live with the Wife and that if the parents reside in the same city within reasonable proximity of each other that the children spend significant time with the Husband. The issue that remains is whether the children reside in Brisbane or Sydney and how much time they spend with the Husband.
There are a number of matters that clearly demonstrate why it would be in the best interests of the children that they reside with the Wife in Brisbane and attend school there which include the following; the Wife has settled arrangements for the accommodation and education of the children. The Wife would have the support and assistance of the grandmother and other members of the maternal family. The Wife would be happier and this would impact on her parenting capacity. The arrangements of the accommodation of the children in Sydney will change when the matrimonial home is sold and the arrangements for the education of the children may also change.
However, there remain some important matters. The child T clearly wants to stay in Sydney, go to the same school, live in the same environment, maintain the same peer relationships and also have a relationship with her siblings, M and P, who will continue to reside in Sydney. The views of the child T and her circumstances are significant. Next, although it may only be for a short time the ability of the children to maintain a close association with the children M and P. Next, the ability of the child L to maintain his very good relationship with the Husband may be undermined given his age, the tyranny of distance and the Husband’s contended financial inability to afford the costs of travel and so on.
Subject to one matter, the above matters, and in particular the circumstances of the child T, support an outcome that both children should remain in Sydney. However, I remain concerned about what will happen in the future. It may transpire that what the child T seeks cannot be achieved when the property proceedings are resolved. It may be that neither parent can continue to reside in the same location and the children continue to attend the same schools and maintain the same social and other relationships which the Family Consultant spoke about. Whether this can or cannot occur will depend on what happens in the property proceedings. For example, if it transpired that the business had to be sold or the parties could not live in the same area and in close proximity or the children could not attend the same schools then the matters the Family Consultant suggested favour the children residing in Sydney may not be possible.
It is very unsatisfactory but I have come to the conclusion that at this stage I am unable to finally conclude the parenting proceedings. As I have said, if for example it transpired that because of the outcome of the property proceedings one of the parties could not maintain the current environment for the children, then it may be that it is in the best interests of the children to reside with the Wife in Brisbane. The Husband has put his case on the basis that the children will continue to reside in the northern suburbs of Sydney but there is no evidence presently before me that that can be achieved once the property proceedings are concluded. If it were not for the views of the child T I may be persuaded that it is in the best interests of each child that they reside with the Wife in Brisbane. I am therefore going to adjourn the parenting proceedings and the outcome will depend on what I resolve in relation to the property proceedings.
I am going to make orders that provide that during the school term the children spend time with the Husband each alternate weekend from after school on Friday until 6.00 pm on the following Sunday or 6.00 pm on the following Monday if the Monday is a public holiday and also overnight on one other occasion in each week. Thus in each 14 day period the children will spend time with the Husband for four nights. The children will also spend time with the Husband for half of the school holidays and for a specified period on special days. These orders will be until further order, however if it transpires that the final order is that the children otherwise live with the Wife in Sydney then this will be the final regime for time the children spend with the Husband.
There then remains the issue as to what should occur pending the further hearing of the parenting proceedings and the hearing of the property proceedings. I propose to make orders as sought by both parties in relation to preparation for the hearing of the property applications and intend that the final hearing occur as soon as possible. The parenting proceedings will be adjourned to be concluded at the same time as the hearing of the property applications.
I propose that the children continue to attend the schools they were attending during 2006. I am not prepared to make an order that provides that the children attend different schools given that once the parenting proceedings are concluded there may have to be a further change of schooling for each child. I propose to make an order that the Wife will be solely responsible for choosing the school which the children attend.
It was agreed that the environment in which the children and the parents are currently living in the matrimonial home is inappropriate. There is a high level of conflict between the parents and this is clearly having an effect on the children as indicated by the Family Consultant and in my opinion, which was not disputed, this must cease. It is also having an effect on the relationship of the Wife with the children P and M. The parents can no longer continue to reside under the same roof. The issue then is which parent should vacate the matrimonial home. I propose that the Wife have the right to exclusive occupation of the matrimonial home pending further order and the Husband vacate the home within a period of 28 days.
The Wife will be primarily responsible for the day to day care of the children and they will spend more time with her than they will with the Husband. The Husband is still working long hours and he does not spend as much time at the home as the Wife. In fact the Wife said, which I accept, that even when he is not working the Husband spends time away from the home. This proposal will probably cause financial hardship to the parties. There will be an issue in relation to the payment of the mortgage secured on the title of the matrimonial home. I assume that the current arrangement would continue namely, that the rental received will be applied towards the payment of the mortgage instalments. However, it may be that arrears are accrued and arrangements may have to be made with the mortgagee to defer any action pending the determination of the property proceedings. As well, the Husband will have to obtain rented accommodation and this may prove expensive. The Husband contemplated obtaining rented accommodation when he sought that the home be sold and each party receive $50,000 pending the outcome of the property proceedings. Further, there may have to be orders made to ensure that certain work is done to the matrimonial home for the purposes of a sale.
Contemporaneously with these orders I will make orders by consent in relation to the preparation for trial of the property applications. It is in the interests of all parties and the children that the property proceedings be concluded as soon as possible.

I certify that the preceding 182 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan

………………………………………………………..
Associate:
Date: 26 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MORTON & MORTON

[2007] FamCA 188

26 February 2007

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