PDG and LJG
[2005] FMCAfam 196
•21 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PDG & LJG | [2005] FMCAfam 196 |
| FAMILY LAW – PROPERTY – Long marriage – parties agree s.79(4) factors equal – wife’s HECS debt incurred pre–separation is a joint matrimonial liability – whether parties’ credit card debts borrowed after separation is a matrimonial liability – wife’s credit card used to support children – husband pays minimal child support – wife’s credit card debt joint liability – husband makes no attempt to live within his means and solely responsible for his credit card debts – s.75(2) adjustment ordered in wife’s favour. CHILDREN – Mid–week and Christmas arrangements. |
| Family Law Act 1975 Child Support Assessment Act 1989 |
| In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 In the Marriage of Clauson (1995) FLC 92-595 Tomasetti (2000) FLC 93-023 |
| Applicant: | PDG |
| Respondent: | LJG |
| File Number: | SYM 985 of 2004 |
| Judgment of: | Ryan FM |
| Hearing dates: | 15 & 16 February 2005 |
| Delivered at: | Wollongong |
| Delivered on: | 21 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. MacPherson |
| Solicitors for the Applicant: | Johnson Horsley & Associates |
| Counsel for the Respondent: | Ms G. O’Connor |
| Solicitors for the Respondent: | Kells The Lawyers |
ORDERS
All prior parenting orders are discharged.
ORDERS BY CONSENT:
The children Johnny (not his real name) born in 1991 and Abel (not his real name) born in 1994 reside with the wife.
The husband has reasonable contact with the children as agreed between the parties. Such contact shall include as a minimum:
(a)During school term:
(i)From after school Friday until 10 am on Saturday or after sport, whichever is the latter, each alternate weekend.
(ii)From after school on Friday until before school on Monday, each other alternate weekend.
(iii)Reasonable telephone contact.
(b)During New South Wales school holiday periods:
(i)For one half of each holiday (with the exception of the December/January holidays) as agreed between the parties, but in the absence of any agreement, for the first half of each period.
(ii)For three weeks commencing on 3 pm Boxing Day each holiday period.
(iii)Reasonable telephone contact.
4. The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the said children.
FURTHER ORDERS:
Notwithstanding any orders to the contrary, each year the children shall reside with the wife from 4 pm Christmas Eve until 4 pm Christmas Day.
Notwithstanding any orders to the contrary, the children shall have contact with the husband from 4 pm Christmas Day until 4 pm Boxing Day every year.
The husband shall have contact to the children from after school until the end of sports training no less than one afternoon each week during school term. The parties to agree which afternoon. This order does not limit the husband’s capacity to attend the children’s sports training, practice games and weekend sports. This contact may be suspended on an ad hoc basis if the child/ren contacts the husband and request that it be suspended.
In the event that Mother’s Day falls on a contact weekend, contact is suspended from 6 pm Saturday evening prior to Mother’s Day until the end of that contact period.
In the event that Father’s Day does not fall on a contact weekend, the husband shall have contact with the children from 6 pm on the Saturday preceding Father’s Day until 6 pm on Father’s Day.
Weekend contact is suspended during school holidays.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Within fourteen (14) days from the date of these orders the parties shall do all things and sign all necessary documents to cause the net proceeds of sale of their former matrimonial home to be disbursed as follows:
(a)Payment to the wife of the sum of $157,674.00, and
(b)Payment to the husband of the balance.
Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM 985 of 2004
| PDG |
Applicant
And
| LJG |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Introduction
These are proceedings for the adjustment of property pursuant to s.79 of The Family Law Act 1975 and for parenting orders. The parenting orders concern the husband's contact with the parties' two youngest sons, Johnny (not his real name) and Abel (not his real name).
The parties agree on most matters concerning their children's living arrangements. They disagree only about Christmas day arrangements and the desirability of orders for midweek contact.
Insofar as the property proceedings are concerned, there is agreement that contributions and s.79(4) factors are equal, and most matters concerning the asset pool. The significant property issues are:
·Whether post-separation Visa credit card debts are joint matrimonial liabilities.
·Whether the wife's HECS debt is a joint matrimonial liability.
·The appropriate s.75(2) adjustment. The wife contends there should be a 10% adjustment in her favour, whereas the husband contends there should be a 5% adjustment in his favour.
Short history
The husband was born in 1957 and is 47 years old.
The wife was born in 1958 and is 46 years old.
The parties commenced cohabitation nearly two years before they married.
The parties married at Wollongong on 2 October 1982.
There are six children of the marriage. The children are:
·DWG born 15 January 1980’
·TJG born 11 June 1984,
·LMG born 23 December 1985,
·BPG born 5 March 1989,
·Johnny born in 1991, and
·Abel born in 1994.
The husband formally adopted DWG in about 1990-1991.
After the husband received a workers compensation payment, in 1997 the parties purchased their home at Dapto.
The parties separated on 19 September 2003. Although separated the parties continued to reside in the former matrimonial home at Dapto.
On 3 September 2004 the wife and 5 children moved into rented accommodation at Wollongong. DWG lives inter state and is attending university.
In December 2004 the parties completed a sale of the former matrimonial home. The sale proceeds are held in a controlled monies account and comprise the parties most valuable asset. Upon settlement both parties received $10,000 by way of partial property settlement.
The parties divorced in late 2004.
Neither party has repartnered.
The relevant law
The approach to the determination of an application under s.79 is well established by authority. See in the marriage of In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335. The process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c), and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child, and any child support under the Child Support Assessment Act 1989, that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
Any order that the court makes must be just and equitable. It is the terms of the orders themselves that the court must consider. See RussellvRussell (1999) FLC 92-877.
The assets, liabilities and financial resources as at the date of hearing
The parties agree on the value of their assets and most liabilities.
I find that the assets, liabilities and financial resources as at the date of the hearing are as set out below:
| Assets | $ |
| Net proceeds of sale of the former matrimonial home (Agreed) | 265,126 |
| Motor vehicle (Agreed) (W) | 12,000 |
| Shares (Agreed) (W) | 4,830 |
| Motor vehicle (Agreed) (H) | 1,000 |
| Superannuation (Agreed) (W) | 7,628 |
| Superannuation (Agreed) (H) | 900 |
| TOTAL ASSETS | 291,484 |
| Liabilities | |
| HEC’s debt (W) | 11,251 |
| Visa card (W) | 6,000 |
| Social security (Agreed) (W) | 5,658 |
| TOTAL LIABILITIES | 22,909 |
| NETT ASSETS | 268,575 |
A number of these findings require explanation.
During the marriage the wife undertook various tertiary studies. In 1996, she started a Bachelor’s degree at the University of Wollongong. After graduation this qualification enabled her to work as a dietician. In 2002 the wife commenced a research PhD. The wife receives a scholarship from the Australian Post-Graduate Scholarship Fund. The wife was unable to pay her university fees for her bachelor degree as she studied. She deferred her fees thereby incurring a HECS debt which stands at $11,251. Interest on the balance outstanding runs at about 3.1 per cent[1]. The interest component is discounted if the amount is fully paid. If she is unable to repay the debt in one lump sum payment, the wife is able to pay by instalment. The Australian Tax Office only enforces repayment once the wife’s income reaches a threshold. In her circumstances the threshold amount is about $39,000 per annum. The wife has not made any repayments to reduce her HECS debt.
[1] Exhibit I
By undertaking tertiary study the wife placed herself in a better employment position. After graduation she worked as a dietician and used her income entirely for joint matrimonial purposes. The HECS debt was incurred prior to final separation. Post separation the wife is in a better position to support the children because of her qualifications. As she must do so without any proper financial contribution by the husband, I am satisfied that I should treat the HECS debt as a joint liability.
Acting on advice received from Centrelink and the university the wife did not declare her scholarship income to Centrelink. Recently Centrelink advised her that for Centrelink purposes her scholarship is income. Consequently, they have raised a debt that she is repaying at about $200 per fortnight. There is a prospect that Centrelink may go back further in time and the debt increase. The wife plans to challenge the decision in the SSAT. Notwithstanding this uncertainty the parties agree that the proceedings should be finalised and the current debt included as a joint liability.
The Visa credit card debt issue is quite perplexing. At separation on
19 December 2003, the parties all but paid out their credit cards, leaving only a small amount outstanding. As at February 2004 the husband's credit card debt was $308. He now owes $11,090. Although separated, the parties continued to live together until 24 September 2004 when the wife and children vacated the former matrimonial home. From October 2003 until she vacated the former matrimonial home, the wife paid the mortgage, household outgoings, rates, and the families’ day to day living expenses, without assistance from the husband. After she left the former matrimonial home, he did not pay any household expenses other than his own personal expenses, notwithstanding that he had exclusive use of the home. Nor did he make a proper contribution towards child support. At that time the wife's income comprised social security benefits, family allowance, and scholarship payments. Added together, her weekly income was about $861. The wife pays $280 each week rent for the Wollongong rental property. Thus, on about $580, she supported herself, the parties' three younger children and contributed to the former matrimonial home. Although her credit card statements[2] shows small sums spent on personal items and gifts for the parties' elder children, it is clear that they significantly comprise ordinary and necessary expenses for the children and prior to physical separation, the home. Had the husband been paying proper child support or appropriately contributing to the mortgage and household expenses, I may have disregarded the entire sum due on her credit card. On the basis the wife had sufficient, albeit modest, funds to meet her and the children's reasonable expenses. However, because the wife’s income was modest and the husband failed to pay meaningful child support or support the home in which he resided, I am satisfied I should include a reasonable proportion of the wife's credit card liability as a joint matrimonial liability. Presently she owes about $10,051. I will allow $6,000, which although it appears somewhat arbitrary, is intended to strike a balance between reasonable expenses needed for the younger children and the home and amounts spent on travel and the adult children.
[2] Exhibit H
By comparison, until the home sold, the husband lived rent free and made little contribution to the children's expenses, even when they were with him. Although his sole source of income was a disability support pension, he had sufficient funds available to meet his basic expenses. He appears to have made little attempt to live within his budget. In relation to some expenses he had funds drawn from the mortgage made available. Also a police fine of $672. In these circumstances I am satisfied that he alone should carry responsibility for his credit card debt incurred post-separation.
Aware that these issues required determination, the parties nonetheless agreed that whatever findings the court made concerning the asset pool, the court would find that the s.79(4) factors apply equally. Because of this agreed fact there is no necessity to make factual findings concerning contributions.
The orders do not affect the earning capacity of either party.
The husband pays $21 per month, the statutory minimum, child support.
With respect to the parties I agree with them that after a marriage of over 24 years, their contributions are equal.
Section 75(2)
I turn now to consider the relevant s.75(2) factors. Determining the appropriate adjustment is quite complex.
The husband is 47 years old and has had significant health problems. In 1989, while working for the Department of Main Roads in Queensland, he suffered a lower back injury. He has not worked on a full time basis since. In 1989 two of his vertebrae were fused and a number of screws and pins were inserted into his vertebrae. The husband is presently unemployed. He receives $235 each week disability benefit. I infer his entitlement is primarily based upon his back injuries. His injuries were sufficiently serious that he received a workers compensation payment of $124,000. On a continuing basis the husband suffers from lower back pain. He has difficulty turning at the waist and is blind in his left eye. With his health problems, I accept that the husband does not have the physical capacity to resume full time paid employment. At best, he has the capacity for casual and part time work. Since his injury the husband has had a reasonable amount of casual or part time work. For example, he has worked as a kitchen hand, hospital assistant, delivery driver, and doing mailbox deliveries. The husband says he has no capacity for paid employment. In response to the wife’s evidence that he worked in restaurants from 1996 on and off for about four years where the husband claimed his work was unpaid work experience. Although I accept his evidence that his employment was not continuous throughout these years, it was, nonetheless, significant. The husband does not challenge the wife's evidence about the amount of time he allegedly spent at work. However, he claimed that his wife was unaware that the restaurateur often said he was not needed. When this occurred, rather than return home the husband said he visited family and friends. This was a significant issue and the lack of corroboration for this evidence does not assist the husband’s case. I am not satisfied that for so many years the husband worked for unpaid work experience. He has prior hospitality experience and for a while studied at TAFE for a hospitality management diploma. After his injuries I accept that the husband needed to attempt work so that he could discover how his injuries affected his work capacity. With respect to him, four years work experience in the one restaurant defies credulity. The wife does not identify what income or benefits the husband received from these employers. The husband has demonstrated through these various positions a capacity for part time work that should produce a small supplement to his income. Since separation the husband has not sought work. Now that these proceedings are over he may be more motivated to do so.
The wife is 46 years old and in good health. Subject to the Centrelink reduction the wife’s income is set out in her financial statement. The wife is a dietician. The wife plans to apply for an Associate Professorship position for which she will receive a salary of about $39,000. There is virtually no difference between the income she will receive in this position, and that which she currently derives from the various sources to which I have made reference. Whether her PhD or position as an Associate Professor will lead to better paid work is uncertain. If it does not, worst case scenario is that the wife will resume secure employment as a dietician. As she may even earn slightly more than she presently does. The compromise, from her position, is working conditions. Working at University the wife has always been able to adjust her working hours to the children's needs. Prior to separation the husband was actively involved, as a parent and homemaker, in the children's lives. Now that the parties are separated, the wife is more substantially and exclusively responsible for the children's day to day care. The flexibility offered to her in her employment at the University is even more acutely needed than prior to separation. If the wife returns to work on a full time basis as a dietician, that flexibility, which underpins her capacity to meet the children's needs, is denied.
The parties' youngest child, Abel is 10 years old. He is at an age where he is on the cusp of being able to adequately have his needs met even though his mother works full time. The difficulty for the wife, however, is that if she works full time she will incur after school care and other expenses. Overall the financial benefits may be insignificant when increased income against probably increased expenses is considered. Whichever course the wife takes, however, her financial future is more assured than the husband’s. His income is likely always to comprise substantially his disability pension, and for a period of time probably some casual or part time employment. The wife will have secure employment, either at university or as a dietician for many years.
Another particularly significant factor is the wife's substantial responsibility for the children. I have already made reference to the impact upon her and the children should she resume full time employment. The husband agrees that the children should live with the wife and day to day primary responsibility for their care will remain with her. The children are 16, 14 and 10. Having regard to the 10 year old, at least one child will be dependant upon her for a number of years. In Clauson (supra) the Full Court held: “In addition, it should not be forgotten hat the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility, and the restriction and independent lifestyle which the obligation to care for children usually entails.” These observations apply to this case, and I am satisfied there should be an adjustment in the wife's favour pursuant to s.75(2)(c).
The wife uses all of her income supporting her and the children. If she starts full time paid employment, her financial circumstances will modestly improve. Even so she will spend all of her income on necessary expenses. The husband also spends all of his income on his necessary expenses. However, the expenses that the wife must meet substantially exceed those which the husband must meet. This scenario must be understood within the context that it is the husband's case that he will never work in the paid workforce again. Thus there is no likelihood that he will make a meaningful contribution to the children’s expenses through child support. I am satisfied he will not. It is abundantly clear that the financial burden of supporting these children in the years that lie ahead will be met by the wife with virtually no assistance from the husband. This is a very important factor. That the wife will have such significant actual responsibility and financial responsibility for the children is, in my opinion, a critical factor, which when balanced against her greater capacity for paid employment, the husband’s health difficulties and his considerably lesser capacity for employment, tips the balance in favour of an adjustment to the wife.
The wife contended that the court would make a 10% adjustment in her favour. Although the asset pool is modest, given the husband's financial future, this amount would be too large. Although only slightly less the appropriate adjustment in her favour is 8%. This adjustment reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti (2000) FLC 93-0223. Any lesser adjustment, given the size of the asset pool, would be notional.
Section 79(2) – is this outcome just and equitable?
Because the court must consider the actual orders, not just the percentage distribution under s.79(2), justice and equity in cases like this requires the court stands back and looks carefully at the outcome of a s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction, that an outcome favourable to the wife of 58% compared to the husband's 42% is just and equitable. These include that the children will continue to live with the wife, and that she will be overwhelmingly responsible for their day to day care. The husband is unlikely to ever make a meaningful financial contribution to their support. In the years ahead, the wife will be virtually solely responsible for meeting the children's significant financial needs. The expenses she incurs will far outweigh the expenses the husband will incur when the children are with him on contact. The wife's future income is superior to the husband's. His financial future will substantially centre on a disability benefit. His financial future, given the size of this asset pool, and his limited capacity for paid employment is grim. If there was a larger asset pool, I could better reward both parties’ efforts during their marriage. But the assets available for distribution are few. For both parties the financial future involves hardship. On balance, having regard to the findings that I have made pursuant to s.79(4) and s.75(2), the outcome is just and equitable.
The effect of the orders means that the husband will have his car and superannuation, worth $1900. The wife has her car worth $12,000, shares of $4830, and superannuation of $7628. She has a HECS debt of $11,251, credit card debt allowed at $6000 and Centrelink of $5,658. Overall, the wife's liabilities are $21,709. Thus the wife’s net assets are $1549.
At 58 per cent, the wife is entitled to $155,773.50. At 42 per cent, the husband is entitled to $112,801.50. He has assets of $1900, and therefore from the net asset pool of $268,575, he is entitled to receive $110,901.50. The wife will have the balance.
Contact orders
The only other issue concerns contact arrangements. The parties have reached substantial agreement on the children’s issues. I am asked to make consent orders, which orders underpin my approach to this issue. The husband has a keen interest in sports and for many years has coached the children’s cricket, football or baseball teams. The three younger boys share their father’s interests in sport and are used to his involvement in their sports clubs. For years he has been primarily responsible for arranging their attendance at weekend competition games. The image created is that of mad dashes between sports fields in order to see the children play. The wife is not an enthusiastic sports fan and sport has primarily been the husband’s domain. The husband wants an order that he has mid week contact twice each week so that he can take the children to training. The wife opposes this but agrees that the husband should continue his involvement in the children’s sports and see them when they are at training. She says the husband is often unreliable when it comes to feeding the children their evening meal and that too often they return hungry and with home work not finished.
I accept her evidence. The wife also believes that the children’s commitment to sport may wane as other interests take over. This is entirely possible. Because of their ages she believes that a better approach is to facilitate mid week contact but allow the boys a greater degree of control over their relationship with the husband. Tying the children and her down to fixed mid week contact she fears is likely to lead to further litigation.
Although the children have always spent Christmas night with the husband’s family the husband says Christmas nights and days should be shared. The wife says the children should continue to have Christmas night with the husband and his family. Basically that the children would not tolerate any other outcome. With respect to him, I had great difficulty understanding the husband’s opposition to a course plainly advantageous to him and his relationship with his children.
Relevant parenting law
Contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings.
It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Conclusion parenting issues
The children have a good relationship with both parties and each other.
Johnny and Abel are the youngest of six children. Until the start of this hearing both parties sought a residence order. Thus the court has the benefit of a s.62G(2) report[3]. The children’s wishes and circumstances were explored with the court counsellor. The court counsellor's was not cross-examined. There is no suggestion that the court counsellor misreported any aspects of her consultations with the parties or with the children. The court counsellor's recommendations are set out below.
[3] Exhibit A
That BPG, Johnny and Abel reside with their father on alternate weekends from 3.30 pm Friday until 9 am Monday.
That BPG, Johnny and Abel reside with their father on alternate Wednesdays from 3.30 pm to 9 am Thursday.
That BPG, Johnny and Abel reside with their mother at all other times.
That BPG, Johnny and Abel see their father on afternoons, as desired, to effect their sporting arrangements.
It is important to understand that these recommendations were made at a time when the parties had only physically separated about three months earlier. The counsellor said: “All five children were clearly wanting to live more with their mother than their father. This probably has to do with their father's poor impulse control. It seems also to hinge more on the levels of warmth and cohesion their mother provides and their father does not.”
Whilst contact with the husband revolves around BPG, Johnny and Abel's sporting activities, the court counsellor considers it to be more disruptive and unsettling than contact for a block period on alternate weekends with one midweek overnight in the other week. This need not preclude them from seeing their father on two afternoons per week for sports.
The thrust of this recommendation is that the court counsellor considers that the children and their father have a pattern whereby he participates in their sporting life as their coach. She recommends that the children see their father on afternoons, as desired, to effect their sporting arrangement. The court counsellor does not press that the court makes defined after school parenting orders, which would provide a fixed structure irrespective of the demands on the children's time. Her expectation is that with flexibility and maturity, contact will take place as it has to date on a continuing basis.
It seems to me the court counsellor tried to strike a balance between the husband’s desire to have regular mid-week contact with the boys, and the boys' growing maturity. She seems to have recognised that the children may lose interest in a particular sport or have other, to them more pressing, demands on their time. For example, it may be that the children need to be at their mother's home studying, and merely attend training for a limited period. The children are old enough to communicate with their father whether or not they will be attending sport and whether or not they wish to exercise mid week contact. The wife’s evidence is that she expects the children to continue to see their father on Mondays and Wednesdays during school term when they are at training.
The accommodation that I have come to between the need for flexibility and the need to ensure that the children have good contact with their father is to order that he has contact with them after school until the end of sports training, no less than one afternoon each week during school term. The parties can agree on which afternoons. The afternoons may differ week to week. The order does not limit the husband's capacity to attend sports training, practice games, and weekend sports. There is an important condition to this order which is that mid week contact may be suspended on an ad hoc basis if a child or children contacts the husband and request that it. This order recognises that the children are getting older and are entitled to have some say in the way they live their lives. With this comes a degree of responsibility. The children have a responsibility to their father as well as he to them. He relishes his time with them and they need to respond to his desire for contact appropriately. In a sense, it is not an entirely one way street. If the children are going to change their arrangements with their father, then they need to do so respectfully and in advance. He, in turn, needs to recognise that this does not mean that the children reject him. This happens with most children, whether they are living in in tact or separated families. As they mature children establish their own interests increasingly, independently of their parents. Allowing them to do so is an important parental responsibility.
The issue concerning Christmas Day is, frankly, bizarre. The husband’s family has their large family celebration on Christmas night. The children have always attended this celebration, and I accept the wife's evidence that they would be dismayed if she had them in her care and they missed out on an activity that they have enjoyed throughout their lives. It is important that the children have Christmas night in their father's care so that they can immerse themselves in his milieu, and continue the pattern that they have enjoyed throughout their lives.
The parenting orders are in the children's best interests.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 26 April 2005
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