RUSH and FIORE

[2013] FCWAM 47

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: RUSH and FIORE [2013] FCWAM 47

CORAM: MORONI M

HEARD: 30 & 31 OCTOBER, 1 & 2 NOVEMBER 2012 & 19, 20, 21, 22, 25, 26 & 27 FEBRUARY 2013

DELIVERED : 18 APRIL 2013

FILE NO/S: PTW 1323 of 2011

BETWEEN: MR RUSH

Applicant

AND

MS FIORE
Respondent

Catchwords:

FAMILY LAW - Parenting orders - Parental responsibility - Equal time - Substantial and significant time - With whom children live - With whom children spend time - Best interests of children - Single expert - Property settlement - Asset pool - Contributions - Future needs - Just and equitable

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Hooper SC

Respondent: Mr F Castiglione QC

Independent Children's Lawyer : Ms L Young

Solicitors:

Applicant: Balmoral Legal

Respondent: Butlers

Independent Children's Lawyer : Legal Aid WA

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

MRR v GR (2010) FLC (93-424).

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1The proceedings for determination by the Court comprise the Form 1 application of [Mr Rush] (“the Applicant”) filed on 15 March 2011, the Form 1A response of [Ms Fiore] (“the Respondent”) filed on 16 March 2011, the amended Form 1A response filed by the Respondent on 5 May 2011 and the Form 1B reply filed by the Applicant on 24 January 2012.

2The parties are in dispute in respect of parenting issues relating to the welfare of their two children, namely, [Child A] (born [in] 2003) and Child B (born [in] 2005) (“the children”).

3The child related proceedings fall to be determined pursuant to the provisions of Part 5 of the Family Court Act 1997 (WA) (“the Act”).

4The trial of the child related proceedings was conducted pursuant to the provisions of Division 11A of Part 5 of the Act, which Division houses s 202H that contains the general rule that certain of the rules of evidence do not apply to child related proceedings.

5Further, the parties are in dispute regarding financial issues and the financial component of the dispute falls to be determined pursuant to the provisions of Part 5A of the Act.

Composition of the evidence

6The evidence-in-chief of the Applicant was comprised principally of his affidavit filed on 14 September 2012 (the Applicant’s trial affidavit) and his Form 13 financial statement filed on the same day.

7The Applicant filed three witness affidavits being those sworn/affirmed by [Ms Craig], [Mrs Rush] and [Mr Masin] all of which were filed on 14 September 2012.

8The Applicant also filed the affidavit of the financial single expert witness, namely, Suzanne Delbridge-Bailey, on 1 November 2012.

9The issues the subject of the affidavit of Ms Delbridge-Bailey were substantially agreed during the course of the trial and so it was unnecessary for this witness to be called. However, both parties relied on the content of such affidavit and each party made submissions in relation thereto.

10Both Ms Craig and Mrs Rush attended at the Court to be cross-examined.

11Counsel for the Applicant advised the Court that the Applicant would not be relying upon the evidence of Mr Masin.

12As for the Respondent, her evidence-in-chief was comprised principally of the following documents, namely, her affidavit regarding financial issues filed on 7 September 2012 (the Applicant’s financial trial affidavit), her Form 13 financial statement filed on 14 September 2012, her parenting issues affidavit filed on 14 September 2012 (the Respondent’s children’s issues trial affidavit) and, finally, her further affidavit filed 26 October 2012 (the Respondent’s supplementary trial affidavit).

13The Respondent filed eight individual witness affidavits, being the affidavit of [Mr Macbay] filed on 7 September 2012, the affidavit of her father [Mr Fiore] filed on 10 September 2012, the affidavit of her partner [Mr Reeves] filed on 14 September 2012, the affidavit of [Ms Lincoln] filed on 10 September 2012, the affidavit of [Ms Valenti] filed on 10 September 2012, the affidavit of [Mr Samson] filed on 14 September 2012, the affidavit of [Ms Hallman] filed on 14 September 2012, the affidavit of [Ms Dircks] filed on 5 February 2013 and the affidavit of [Mr Paige] filed on 10 October 2012.

14The witness Ms Valenti was not required for cross-examination and her affidavit evidence was accepted by the Court, subject to comment by counsel.

15The witnesses Mr Macbay, Ms Hallman and Mr Paige were not called by the Respondent as those witnesses were to provide evidence as to the value of certain items of property where agreement in respect thereof was reached at trial by the parties.

16Otherwise, the Respondent’s witnesses Mr Fiore, Ms Lincoln, Mr Samson, Ms Dircks and Mr Reeves were all called and were all cross-examined.

17Finally there is the evidence which was arranged by the Independent Children’s Lawyer (“the ICL”).

18The ICL was appointed after the Court had appointed Dr Darryl Frank Menaglio, clinical psychologist, (“the single expert”) as single expert witness in the child related proceedings to report on specified terms of reference.

19The evidence from the single expert was presented to the Court in four different documents.

20Firstly, there is the single expert’s affidavit filed on 22 December 2011.

21Secondly, there is the single expert’s affidavit filed on 27 January 2012.

22Thirdly, there is the ICL’s own affidavit filed on 21 June 2012, to which is annexed a report from the single expert.

23Finally, there is the single expert’s affidavit filed on 17 October 2012.

24The single expert attended at the trial and was examined at some length, particularly by the Respondent’s counsel.

25Otherwise, the ICL had made arrangements for teachers at the school attended by the children to present to the Court to give oral evidence.

26In the result, only one such witness was called, namely, [Ms Milligan], who is the Principal of the [School A].

27Ms Milligan did not sign an affidavit, given Departmental policy. However, she kindly prepared a set of notes outlining the evidence she would give and those were taken into evidence as exhibit 44. Ms Milligan was examined by counsel for each of the parties.

Orders sought at trial by the parties

28The orders sought by the Applicant, subject to one variation, were in terms of a minute of proposed orders contained in his Papers for the Judicial Officer filed 23 October 2012, as follows:

1.That the parties have shared parental responsibility for the children of the relationship, Child A (born [in] 2003) and Child B (born [in] 2005) (collectively "the children").

SCHOOLING

2.The children shall attend for their primary schooling at School A and the parties shall not remove the children from School A save and except in the event of written agreement or an Orders of the Court.

LIVING ARRANGEMENTS

3.That during school terms the children live with the Applicant Father and spend time with the Respondent Mother in a fortnightly cycle as follows:

a)In week one, from the conclusion of school Thursday to the commencement of school Friday; and

b)In week two, from the conclusion of school Friday to the commencement of school Monday (with such time to be extended to the commencement of school on Tuesday in the event of a non-school day).

4.That in the term 1, 2 and 3 school holidays the children spend time with the Applicant in the first half of the school holiday period to the midway point of the school holiday period and spend time with the Respondent in the second half of the school holiday period.

5.That in the term 4 Christmas / summer school holidays the children live with the Applicant and spend time:

a)In 2012 and each alternate year thereafter, with the Respondent in the first week and each alternate week thereafter; and

b)In 2013 and each alternate year thereafter, with the Respondent in the second week and each alternate week thereafter.

6.That in the Christmas period the children spend time with the:

a)Respondent for Christmas from 5:00pm on 24 December 2012 until 11:00am on 25 December 2012 and every alternate year thereafter;

b)Applicant for Christmas from 11:00am on 25 December 2012 until 5:00pm on 1 January 2013 and every alternate year thereafter;

c)Applicant for Christmas from 5:00pm on 24 December 2013 until 11:00am on 25 December 2013 and every intervening year thereafter; and

d)Respondent for Christmas from 11:00am on 25 December 2013 until 5:00pm 1 January 2014 and every intervening year thereafter.

HANDOVER

7.That outside of school term handover of the children is to be effected by the party who has the care of the children delivering the children at the end of their live with / spend time to the residence of the other party.

COMMUNICATION

8.That the children be at liberty to contact the parent with whom they are not spending time each Tuesday and Friday evening and the parents use their best endeavours to make the children available for telephone communication at 7:00 pm.

9.That the parties will maintain a communication book and make sure that the book is sent with the children between their two homes and the parties will record information related to the health, education, welfare and social issues that arise during the time the children are with them.

10.In the event of illness or emergency in respect of a child the party with whom the children are living / spending time with shall contact the other party as soon as is possible to inform them of the issue and the intended treatment.

11.That the parties will keep the other informed of their current residential addresses and telephone numbers including landline and mobile telephone numbers.

12.That neither party will make negative comments about the other party or the parties family within hearing distance of the children and the parties shall do all that is possible to ensure that the children are not able to hear any third parties make any derogatory comments.

13.The Respondent shall do all acts necessary to ensure that:

a)Mr Reeves does not drive a motor vehicle in which the children are passengers;

b)Mr Reeves is not left alone to solely supervise the children at any time; and

c)The children are put to sleep in their own beds and not with any person.

PROPERTY

14.That within 42 days of extraction of these Orders to the parties solicitors, the Applicant and Respondent do all acts and sign all documents and give effect to all instruments to transfer all of the Respondent's right, title and interest in the property situate at [Property A] in the State of Western Australia, being more particularly described as Lot [XXX] on Deposited Plan [XXXX] and being the whole of the land described in Certificate of Title Volume [XXXX] Folio [XXX] ("[Property A]") to the Applicant ("the [Property A transfer]").

15.That contemporaneous with the [Property A] transfer, the Applicant:

a)Pay to the Respondent a sum of money to effect a division of the nett matrimonial asset pool which is considered just and equitable by this Honourable Court; and

b)Secure the release of the Respondent from any liability associated with [Property A] and indemnify the Respondent and keep her indemnified in relation to all expenses, utilities, council and water rates and levies associated with the [Property A] and any loans secured by the [Property A].

16.That any interest that the Respondent may have in [Company A] (or any related business whether held on trust or otherwise) ("the business") vest in the Applicant and contemporaneously the Applicant secure the release of the Respondent from any liability associated with the business.

17.That the Applicant's interest, if any, in the following, vest in the Respondent:

a)Any motor vehicle usually in the power, possession and control of the Respondent;

b)The furnishings and chattels in the power, possession and control of the Respondent;

c)All items of personal property in the power, possession and control of the Respondent;

d)Any shares held in the name of the Respondent;

e)Monies standing to the credit of the Respondent in any bank or financial institution; and

f)Any interest the Respondent may have in any superannuation fund.

18.That the Respondent's interest, if any, in the following, vest in the Applicant:

a)Any motor vehicle usually in the power, possession and control of the Applicant including but not limited to the Holden, children's dirt bike and [Jeep];

b)The furnishings and chattels in the power, possession and control of the Applicant;

c)All items of personal property in the power, possession and control of the Applicant;

d)Any shares held in the name of the Applicant; and

e)Monies standing to the credit of the Applicant in any bank or financial institution;

f)Any interest the Applicant may have in any superannuation fund.

19. That the Respondent pay the costs of the Applicant.

20.Such further or other Order as deemed appropriate by this Honourable Court.

29In the course of the trial, the Applicant amended his minute of proposed final parenting orders so as to substitute the word “Thursday” for the word “Friday” appearing in paragraph 3(b) above.

30The orders sought at trial by the Respondent were in terms of two separate minutes filed by her on 23 October 2012, one being in respect of parenting issues and the other in respect of financial issues, as follows:

Respondent’s parenting orders minute

1.That all previous Orders regarding the children [CHILD A] born [in] 2003 and [CHILD B] born [in] 2005 ("the children").be discharged.

2.That the mother have sole parental responsibility for the children.

3.That until further Order the parties be restrained, and an injunction granted restraining the parties from relocating the children outside the Perth metropolitan area without the prior written consent of the other party.

4.That the children live with the Mother and spend time with the Father as follows;

4.1Each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday;

4.2In the intervening week from the conclusion of school on Thursday until the commencement of school on Friday.

5.That the children spend school holidays with the parties as follows;

5.1In 2013 and each alternate year thereafter, the Father spend the first week of each of the school term holidays with the children from the conclusion of school on Friday (or the last day of term) until 5.00pm on the middle Saturday of the school holidays.

5.2In 2013 and each alternate year thereafter, the Mother spend the second week of each of the school term holidays with the children from 5.00pm on the middle Saturday to the commencement of the first day of school.

5.3In 2014 and each alternate year thereafter, the Father spend the second week of each of the school term holidays with the children from 5.00pm on the middle Saturday until the commencement of the first day of school.

5.4In 2014 and each alternate year thereafter, the Mother spend the first week of each of the school term holidays with the children from the conclusion of school on Friday (or the last day of term) until 5.00pm on the middle Saturday of the school holidays.

5.5That during the 2012 Christmas School Holidays and each alternate year thereafter, the mother spend time with the children:

5.5.1during the first two weeks from the conclusion of school on the last day of term until 5.00pm on Saturday two weeks thereafter; and

5.5.2the fifth week of the holidays from 5.00pm on Saturday until 5.00pm the following Saturday.

5.6That during the 2012 Christmas School Holidays and each alternate year thereafter the father spend time with the children:

5.6.1during the third and fourth weeks of the holidays from 5.00pm on Saturday until 5.00pm on Saturday two weeks thereafter; and

5.6.2from 5.00pm on Saturday to 5.00pm on Saturday during week six.

5.7That during the 2013 Christmas School Holidays and each alternate year thereafter the father spend time with the children:

5.7.1during the first two weeks from the conclusion of school on the last day of term until 5.00pm on Saturday two weeks thereafter; and

5.7.2the fifth week of the holidays from 5.00pm on Saturday until 5.00pm the following Saturday.

5.8That during the 2013 Christmas School Holidays and each alternate year thereafter the mother spend time with the children:

5.8.1during the third and fourth weeks of the holidays from 5.00pm on Saturday until 5.00pm on Saturday two weeks thereafter; and

5.8.2from 5.00pm on Saturday to 5.00pm on Saturday during week six.

5.9That in 2012 and each alternate year thereafter, the children spend time with the mother (if not otherwise in her care) from 5.00pm on 23 December 2012 until 2.00pm on 25 December.

5.10That in 2012 and each alternate year thereafter, the children spend time with the father (if not otherwise in his care) from 2.00pm on 25 December until 5.00pm on 27 December.

5.11That in 2013 and each alternate year thereafter, the children spend time with the father (if not otherwise in his care) from 5.00pm on 23 December until 2.00pm on 25 December.

5.12That in 2013 and each alternate year thereafter, the children spend time with the mother (if not otherwise in her care) from 2.00pm on 25 December until 5.00pm on 27 December.

5.13That the children spend time with the father on Father's Day each year from 5.00pm on the Saturday before Father's Day until the commencement of school the following Monday.

5.14That the children spend time with the mother on Mother's Day each year from 5.00pm on the Saturday before Mother's Day until the commencement of school the following Monday.

5.15That the children spend time with the father for his birthday each year from 5.00pm the day before the Father's birthday until the commencement of school, or 9.00am on a non-school day, the day after the Father's birthday.

5.16That the children spend time with the mother for her birthday each year from 5.00pm the day before the Mother's birthday until the commencement of school, or 9.00am on a non-school day, the day after the Mother's birthday.

5.17That the children spend time with the father on each of their birthdays from the conclusion of school until 6.30pm on a school day, or for a period of 5 hours on a non-school day if the children would otherwise be in the care of the mother.

5.18That the children spend time with the mother on each of their birthdays from the conclusion of school until 6.30pm on a school day, or for a period of 5 hours on a non-school day if the children would otherwise be in the care of the father.

6.That the children be enrolled at, and attend, [School B] in [Suburb B] from the commencement of the 2013 school year.

7.That the parties authorise and instruct [School B] to release to them such information and/or documents regarding the children's education, including but not limited to:

7.1School reports;

7.2Newsletters;

7.3Certificates of Merit;

7.4Notices of significant events.

8.That both parties have liberty to attend all school meetings, sports days, assemblies and any other activities attended by the children.

9.That the parties be restrained from enrolling the children in any extra-curricular activity that impinges on the time that the other parent spends with the children, without first obtaining the permission of the other parent, in writing.

10.That the parties be permitted to take the children for interstate and international travel on the following basis;

10.1The travel does not impinge on the other parent's contact with the children unless by agreement in writing;

10.2The travelling parent provide to the other parent copies of the air tickets, itinerary and a contact telephone number for where the children will be staying.

11.That the parties keep each other informed as soon as practicable of any illness or injury to the children and any treatment received by the children while they are in the other parent's care.

12.That the parties be restrained and an injunction be granted restraining the parties from;

12.1Discussing the Family Court proceedings with the children or within their hearing;

12.2Denigrating the other party or any member of the other party's family to the children or within their hearing.

13.That all remaining Applications be otherwise dismissed.

Applicant’s financial orders minute

1.That the father retain the following funds, as and by way of partial property settlement:

1.1The funds withdrawn by the father from the Westpac Business One ([XXXX]) account in the period from February 2011 to May 2011 which has not been accounted for;

1.2 The funds of $93,454.54 withdrawn by the father from the Westpac Business One ([XXXX]) account from March 2011 to October 2011;

1.3 The father's 50% share of Dr Darryl Menaglio's fees (less payments made by him) paid by the mother.

2.That the mother retain the following funds, as and by way of partial property settlement:

2.1 The trade-in value of $10,500.00 received by the mother for her 2008 [Mitsubishi] vehicle.

3.That within 30 days of the date of these Orders the father pay or cause to be paid to the mother such amount as required for the mother to receive 60% of the net assets of the parties.

4.Contemporaneously with compliance with Order 3 above, the mother do all acts and things and sign all such documents as may be required to transfer to the father her right, title and interest in [Property A] in the State of Western Australia, and being the land described as Lot [XXX] on Deposited Plan [XXXX] Volume [XXXX] Folio [XXX] ("the ") and the father pay, as and when they fall due, and indemnify the mother with respect to all liabilities relating to [Property A].

5.That the parties do all acts and things and sign all such documents as may be required to discharge the joint mortgage to Westpac Banking Corporation number [XXXX] and the father refinance the mortgage into his sole name and pay and indemnify the mother in respect of all liabilities for [Property A].

6.That in default of the father's payment pursuant to Order 3 above, the father forthwith do all things and sign all documents as may be necessary for [Property A] to be sold by an Agent to be appointed by the President of REIWA.

7.On settlement of the sale of the property, the proceeds be applied as follows;

7.1To discharge the mortgage to Westpac Banking Corporation number [XXXX].

7.2To pay all outstanding rates and land tax liabilities.

7.3To make payment to the mother sum amount as required for the mother to receive 60% of the net assets of the parties.

7.4To pay the balance, if any, to the father.

8.That other than as provided in these Orders, the mother's right, title and interest (if any) in all property in the possession of the father, forthwith vest in the father, including but not limited to, to following:

8.1the father's Westpac One Business (XXXX) account;

8.2the father's Westpac Classic Plus (XXXX) account;

8.3[Company B];

8.4[Company A];

8.5All plant and equipment owned by [Company A.];

8.6The father's Super entitlements;

8.7the father's 1996 [Jeep] , 1968 Holden, [Holden] V8 engine and motorbikes;

8.8the father's tools and furniture;

8.9the furniture, chattels, jewellery and personal property in the father's possession.

9.That other than as provided in these Orders, the father's right, title and interest (if any) in all property in the possession of the mother, forthwith vest in the mother, including but not limited to, the following;

9.1the mother's Westpac bank [(XXXX)] account;

9.2the mother's superannuation entitlements;

9.3the furniture, chattels, jewellery and personal property in the mother's possession.

10.That the father pay and indemnify the mother and keep the mother indemnified against any debt, encumbrance or any other liability associated with any property retained by him, or transferred to him, pursuant to these Orders including:

10.1The Westpac Premium Option Home Loan [(XXXX)];

10.2All Company B debts, encumbrances or taxation liabilities; and

10.3All Company A debts, encumbrances or taxation liabilities.

11.That the mother pay and indemnify the father and keep the father indemnified against any debt, encumbrance or any other liability associated with any property retained by her, or transferred to her, pursuant to these Orders.

12.That the parties do all things and sign all documents necessary to give effect to these Orders.

13.That the parties have liberty to apply in respect of the implementation of these Orders.

14.That personal service of these Orders on the parties be dispensed with.

General background and history of the proceedings

31The Applicant is a self-employed [landscaper] who was born [in] 1971 and who was 41 years of age at the time of the trial.

32The Respondent was born [in] 1977 and at present she holds no paid employment. At the time of the trial the Respondent was aged 35 years.

33It is common ground that the parties commenced a de facto relationship in or about July 2002.

34The relationship has produced the two children referred to above. By the completion of the trial, the elder child was aged nine years and the younger child was aged seven years.

35The parties separated on 27 January 2011, when the Respondent and the children departed the former family home (“Property A”).

36Shortly after the date of separation the Respondent began to live with [Stephen Reeves] (“Mr Reeves”) at his home in the southern Perth suburb of [Suburb B]. It emerged during the course of the trial that the Respondent and Mr Reeves commenced their relationship at some point in 2010 and that they had made plans to live together about six months or so prior to the date of the separation of the parties.

37At the time of the trial, the Applicant was still in possession of the Property A and the Respondent was still living with Mr Reeves in Suburb B. Obviously, the respective places of residence of the parties are quite some distance apart. The Respondent told the Court that it takes about 40 minutes to drive between the two locations.

38The relationship between the Respondent and Mr Reeves has now produced a child, a boy, [Jeffery], who was born [in] 2012.

39Within a relatively short time of the separation, the Applicant consulted solicitors. Then, on 15 March 2011 he filed his application seeking parenting orders in relation to the children and in particular seeking an order that the children live with him on an interim and on a final basis.

40The Respondent too sought legal advice within a short time of the separation and the day after the Applicant filed his Form 1 application, the Respondent filed a Form 1 application (which has subsequently been treated as a Form 1A response). The Respondent too sought interim and final orders that the children live with her.

41The respective applications of the parties were listed as a matter of urgency for consideration by another Magistrate of the Court on 18 March 2011. On that date, his Honour made a series of procedural orders and made orders, on a temporary basis, for the children to live with the Respondent and for the Applicant to spend time with them each weekend.

42His Honour also made an order for the children to be returned to the School A, being the school they attended prior to the separation from which they were removed by the Respondent when she departed the former family home.

43His Honour otherwise ordered the parties to attend a case assessment conference with a Family Consultant on 30 March 2011 and adjourned the proceedings to 14 April 2011.

44The parties did participate in a case assessment conference on 30 March 2011, but no agreement was reached by the parties to settle any short or long term issues. As is the usual practice, the Family Consultant conducted a form of assessment of various risk issues and her notes in relation thereto appear on her memorandum of 8 April 2011, which was copied to the parties.

45Given the nature of the risk issues identified by the Family Consultant, when the case came back before the Magistrate on 14 April 2011, his Honour made an order in standard form for the children to be independently represented. His Honour also made some short term parenting orders and otherwise adjourned the proceedings through to an argument regarding appropriate interim parenting orders to be conducted on 9 June 2011.

46On 5 May 2011, the Respondent filed her amended Form 1A response, introducing financial issues into the proceedings.

47The interlocutory hearing listed for 9 June 2011 did not proceed. His Honour made some procedural orders allowing the filing of certain affidavits by the Respondent and otherwise adjourned the proceedings for argument to 22 June 2011.

48The record of proceedings conducted on 22 June 2011 suggests that there was quite a lengthy argument conducted on that day. His Honour went on to make a number of short term parenting and procedural orders, including some orders relating to the division of chattel property. The proceedings were otherwise adjourned for further hearing before another Magistrate of the Court on 1 August 2011. It is noteworthy that by the time of the hearing on 22 June 2011, the ICL had not been appointed.

49Perhaps the most significant order made by his Honour on 22 June 2011 was the order which permitted the Respondent to enrol the children in School B, which is the school in the vicinity of the place of residence in Suburb B to which she had moved the children after the parties separated.

50On 20 July 2011, the Applicant filed a Notice of Appeal in relation to the interim order made by his Honour regarding the children’s place of schooling.

51Given the filing of the Notice of Appeal, on 22 July 2011, the Magistrate stayed the operation of the relevant interim order, pending determination of the appeal.

52The proceedings were back before the Magistrate on 1 August 2011. Again, on that occasion there was still no engagement of an Independent Children’s Lawyer. However, his Honour made an order for the appointment of the single expert, pursuant to Part 15.5 of the Family Law Rules 2004. The order for the appointment of the single expert required a report to be prepared regarding parenting issues on extensive terms of reference which are the subject of the minute attached to the orders of 1 August 2011.

53Otherwise, his Honour ordered that the Applicant should pay to the single expert the sum of $3,750 towards the costs of his engagement, with the Respondent paying the sum of $13,740, being the balance of the single expert’s estimated costs, with provision for the Applicant to reimburse the Respondent in respect of her greater contribution after the settlement of the financial proceedings between the parties.

54Thus, it was estimated that the single expert’s costs would amount to some $17,490 and the Magistrate considered that, by the end of the day, each party should pay one half of this amount.

55Otherwise, on 1 August 2011, his Honour added the proceedings to the Judge Track, as a complex matter, with an estimated hearing time of six – seven days. The parties were also ordered to attend a conciliation conference, in relation only to financial issues, to be conducted on 16 January 2012.

56The Applicant’s Notice of Appeal was listed for hearing before a single Judge of the Family Court of Western Australia on 22 August 2011. On that occasion, his Honour made a number of procedural orders and otherwise listed the appeal for argument on 26 September 2011.

57The appeal was duly heard by an acting Judge of the Family Court of Western Australia on 26 September 2011. His Honour ordered that the children be returned to attend the School A and otherwise his Honour made an interim order for the Applicant to spend time with the children on alternate weekends, from after school Friday until the commencement of school on Monday.

58His Honour left intact that part of the interim order made by the Magistrate on 22 June 2011 which provided for the Applicant to spend further time with the children on each intervening week from the conclusion of school on Thursday until the commencement of school the following day. His Honour also made provision for the children to spend a week with the Applicant during the October 2011 school holidays.

59It should be noted that the orders in relation to school term time allowing the Applicant to spend time with the children on alternate weekends from after school Friday until the commencement of school the following Monday, and on the intervening Thursday/Friday, remained in force right up until the completion of the trial.

60Next, on 3 October 2011, the Applicant filed a Form 2 application seeking a number of short term parenting orders, including an order which would require the Respondent to arrange for the children to have counselling with a lady named [Ms Calabrese]. That application was listed before a Judge on 3 October 2011 and the application was then adjourned for argument to 22 November 2011.

61After an argument on 22 November 2011, a Judge made various orders including an order for the children to attend counselling with Ms Calabrese as directed by her. Her Honour went on to make orders providing for the children to spend time with the Applicant over the 2011/2012 summer school holidays.

62Then, on 15 December 2011, the Respondent filed a Form 2 application seeking a variety of interlocutory orders in relation to financial issues. That application was listed for hearing before a Judge on 31 January 2012.

63In the meantime, the single expert prepared the report which was the subject of the order made on 1 August 2011. The report of the single expert bears the date 19 December 2011 and it is annexed to the affidavit of the single expert which was filed on 22 December 2011. That affidavit is evidence in the trial of these proceedings, as noted above.

64On 16 January 2012, the parties participated in a conciliation conference in respect of financial issues. Unsurprisingly, given the high level of conflict in the case, no agreement was reached and so the financial proceedings were listed for directions to the hearing date of 31 January 2012.

65When the proceedings were before the Judge on 31 January 2012, there was still no appearance by any ICL. Her Honour then made another order for the children to be independently represented. Otherwise, there were no other substantive orders made on that occasion.

66On 28 February 2012, the ICL came on the record.

67On 11 May 2012, the Respondent filed an amended Form 2 application seeking some further interlocutory orders. That amended application was listed before a Judge on 21 June 2012 and on that date her Honour made a number of orders, either by consent or unopposed. Included in those orders were orders providing for the Applicant to spend time with the children during the July 2012 and the September/October 2012 school holidays.

68An order was also made for the trial of the proceedings to be expedited. As a consequence of the order for expedition, the proceedings were included in the Callover of Defended Matters conducted on 17 August 2012, from which point the proceedings were listed for trial commencing not before 30 October 2012.

69It might be mentioned at this point that, on 9 August 2012, a Judge made some orders by consent in chambers extending the time limit for the filing of trial affidavit evidence to 24 August 2012.

70It would appear that around this time the parties, quite sensibly, acknowledged that the single expert should update his report for the purposes of the trial. The timing of that updating was connected to the preparation of the trial affidavit material for the parties, as obviously both parties wished to reserve the right to address in their trial affidavits any new issues which might be raised by the single expert.

71On 28 August 2012, the Respondent filed an interlocutory application seeking, amongst other things, some directions to regulate the timetable for the filing of trial affidavit material. That application was dealt with by this Court on 10 and 11 September 2012.

72On 7 September 2012, the Respondent filed her trial affidavit in respect only of financial issues, together with her financial statement and the affidavit of her witness Mr Macbay

73Then, on 10 September 2012, the Respondent filed the affidavits of her witnesses Mr Fiore (her father), Ms Valenti and Ms Lincoln.

74Following the argument conducted on 10 and 11 September 2012, the Court made some procedural directions to regulate the filing of trial affidavit material and it also made an order for the engagement of the financial single expert witness to value the interest of the parties in the partnership known as “ABC Partners” (“the partnership”) and also to value, as at 30 June 2012, the interest of the Applicant in the business formerly conducted by the partnership (“the business”).

75On 14 September 2012, the Applicant filed his trial affidavit covering both child welfare and financial issues together with his financial statement.

76Further, on 14 September 2012, the Applicant filed the affidavits of his witnesses Mrs Rush (his mother), Ms Craig and Mr Masin.

77Also, on 14 September 2012, the Respondent filed her trial affidavit in relation to child welfare issues along with the affidavit of her partner Mr Reeves and the affidavits of her witnesses Ms Hallman and Mr Samson.

78On 17 October 2012, the second affidavit of the single expert was filed, to which was attached an updated report bearing the date 17 October 2012. That affidavit is evidence in the trial, as noted above.

79On 23 October 2012, the Applicant filed his Papers for the Judicial Officer, including his minute of proposed orders covering both child welfare and financial issues.

80On the same date, the Respondent filed two separate minutes which have been reproduced above together with her Papers for the Judicial Officer.

81The ICL faxed her Papers for the Judicial Officer to the Court on 26 October 2012.

82The next piece of evidence-in-chief for the trial was the Respondent’s short supplementary trial affidavit filed on 26 October 2012.

83The final piece of evidence-in-chief was filed on 1 November 2012, in the form of the affidavit of the financial single expert witness appointed to value the partnership and the business now conducted by the Applicant as sole trader.

84The trial commenced on 30 October 2012, and after four days of hearing, the Applicant’s case was completed. The Applicant and the witnesses Mrs Rush and Ms Craig were all cross-examined. The Respondent did not require to cross‑examine the witness Mr Masin, and his affidavit was received into evidence unchallenged.

85The proceedings were then rolled out of the October trial list to be included in the December 2012 Callover of Defended Matters. From there, the trial was then listed to resume at not before 10.00am on 18 February 2013.

86The trial actually resumed on 19 February 2013. The single expert and the Respondent and her witnesses were all cross‑examined. The single expert attended the trial and was questioned by counsel for each party.

87Unfortunately, due to substantial personal reasons, the ICL was unable to participate in the second stanza of the trial. Neither party sought to adjourn the proceedings given her unavailability, and the trial was duly completed.

Parenting issues

88It is now well established that the appropriate place to commence the Court’s consideration of the relevant statutory provisions is in respect of the issue of parental responsibility.

89The Applicant has asked for an order that the parties have equal shared parental responsibility for the children. The Respondent has asked for an order that she have sole parental responsibility for the children.

90Section 70A of the Act provides as follows:

70A. Presumption of equal shared parental responsibility when making parenting orders

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in —

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

91The pronouncement of orders for parents to have equal shared parental responsibility of children triggers a number of consequences.

92Firstly, the pronouncement of such an order creates certain obligations on the parents of the children.

93Section 89AC of the Act provides as follows:

89AC. Effect of parenting order that provides for shared parental responsibility

(1)This section applies if, under a parenting order —

(a)2 or more persons are to share parental responsibility for a child; and

(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

(2)The order is taken to require the decision to be made jointly by those persons.

(3)The order is taken to require each of those persons —

(a)to consult the other person in relation to the decision to be made about that issue; and

(b)to make a genuine effort to come to a joint decision about that issue.

(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

94That is to say, if the Court was to make an order for the parties to have equal shared parental responsibility for the children, then such order would require each of the parties to consult the other in relation to the making of a decision about a major long term issue and also to make a genuine effort to come to a joint decision about that issue.

95The expression “major long term issue” is defined in s 7A of the Act, which provides as follows:

7A. Meaning of “major long‑term issues”

(1)For the purposes of this Act —

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about —

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(c) the child’s health; and

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

(2)To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child, however, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

96The other significant effect of the making of an order for equal shared parental responsibility is that it requires the Court then to work through the pathways which are the subject of s 89AA of the Act. If necessary, more will be said on that topic below.

Parental responsibility

97The first question for the Court to ask itself is whether or not the basic presumption contained in s 70A of the Act applies in this case. The only circumstances in which it does not apply are those the subject of subparagraph (2) of s 70A of the Act.

98The evidence led in this case certainly does not establish to the Court’s satisfaction the existence of the circumstances necessary to exclude the presumption of equal shared parental responsibility.

99However, that is not the end of the exercise. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for the parties to have equal shared parental responsibility for them.

100The Court finds that the presumption has not been rebutted by the evidence presented in this case.

101Each of the parties loves the children and that love is acknowledged by the other party.

102Both parties present to the Court as people with a good deal to offer the children in terms of making proper decisions in relation to major long term issues.

103Not only is the Court not satisfied that there is sufficient evidence to establish that it would not be in the best interests of the children for the parties to have equal shared parental responsibility, the evidence points in the opposite direction.

104The Court is abundantly satisfied that the best decisions for the children regarding major long term issues are most likely those to be made jointly. Each of the parties has a substantial life experience and each party has the best interests of the children at heart. It is a combination of the wisdom and life experiences of both of the parties which is likely to produce the best outcome for the children in terms of making decisions on major long term issues.

105True it is that the relationship between the parties is presently strained and more about that will be said below. However, the evidence satisfies the Court that once these proceedings have been completed, it is likely that, with the passage of time, the relationship between the parties themselves will improve.

106The Court is abundantly satisfied that the parties have the capacity to treat each other respectfully and that each has the capacity to communicate effectively with the other. It is a question of will, not capacity.

107From a practical viewpoint, there will not, in the lives of these children, likely be a large number of decisions to be made about major long term issues.

108Firstly, insofar as the children’s education is concerned, the dispute between the parties goes to the location of the appropriate school, not to the style of schooling.

109That is to say, the present dispute about the children’s schooling will actually be determined by the Court and thus once determined will not require any joint decision. The dispute between the parties is, as noted, restricted to location and not to, for example, whether the children should attend a religious or a non-religious school.

110Speaking of religion, there was no evidence to suggest that the parties are likely to need to make difficult joint decisions about the religious upbringing of the children.

111There was no evidence that would suggest that there is likely to be a dispute about the manner of cultural upbringing for the children.

112As for the health of the children, particularly their physical health, it is undeniable that both parties have the best interests of the children at heart.

113Thankfully, there have been no serious health issues which have confronted the children to this stage in their lives. An order for equal shared parental responsibility would not require consultation regarding the management of a minor illness, such as a cold. If the children were unfortunate enough to face some greater health challenge, then, in the Court’s view, both parties should be fully engaged in the management of any such condition.

114As for the names of the children, they bear the surname of the Applicant. There has been no application made by either party to change the names of the children. There was no evidence given by either party of any intention to change the names of the children.

115Finally, there was no evidence that either party plans to make any changes to the living arrangements of the children which are likely to make it significantly more difficult for the children to spend time with the other parent.

116The Applicant’s case is that the obligations created by the making of an order for equal shared parental responsibility are capable of being discharged by the parties in this case, and the Court is persuaded to that view. The Court is not persuaded to the view that vesting sole parental responsibility for the children in either party is the best option in this case. The best interests of the children would be served by the parties working together co‑operatively with a view to making the best types of decisions possible regarding major long terms issues affecting the children.

117It follows therefore that there will be an order that the parties have equal shared parental responsibility for the children.

With whom should the children live

118As noted above, one of the effects of the making of an order for equal shared parental responsibility is that the provisions of s 89AA of the Act are invoked.

119Section 89AA provides as follows:

89AA. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must —

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

(2)If —

(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents,

the court must —

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if —

(a)the time the child spends with the parent includes both —

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays;

and

(b)the time the child spends with the parent allows the parent to be involved in —

(i)the child’s daily routine; and

(ii)occasions and events that are of particular significance to the child;

and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to —

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

120Perhaps at this point the Court might provide the parties with its interpretation of the provisions of s 89AA of the Act.

121Having decided to make an order for equal shared parental responsibility, the Court is commanded, firstly, to consider whether the children spending equal time with each of the parties would be in their best interests, and, consider whether such an arrangement is reasonably practicable, and, if it is, consider making an order for the children to spend equal time with each party.

122If the Court works through that process and then decides not to make an equal time order, the Court then has to follow the pathway established by s 89AA(2).

123The Court should also indicate at this point an observation it made to the parties during the course of the trial regarding the meaning of the term “substantial and significant time”.

124It would be fair to say that, from the Court’s experience, the expression “substantial and significant time” has been elevated to a level in the minds of family lawyers generally and of parents, which is inconsistent with the actual definition set out in s 89AA(3) of the Act.

125The Court can appreciate why it is that the concept of “substantial and significant time” has been exaggerated in the minds of many.

126Firstly, in ordinary parlance, the terms “substantial” and “significant” connote a very major step up from the idea of a parent simply spending time with a child. The very words used import impressions of something much grander than merely a “spend time with” order, or a “contact” order (as that expression was once used).

127Moreover, the reference to the concept of “substantial and significant time” is to be found in the Act posited immediately below the reference to considerations regarding children spending equal time with each parent.

128The very juxtaposition of the two concepts, within the same section of the statute itself, perhaps tends to create the impression that substantial and significant time represents an arrangement just short of equal time.

129However, when one has a close look at the definition contained in s 89AA(3), it emerges that a very high proportion of the “spend time with” orders the Court makes and has made in the past would meet the definition of “substantial and significant time”. However, many such orders would, mathematically speaking, fall well short of effecting an equal time arrangement.

130Indeed, when regard is had to the proposals of the parties themselves advanced in this case, accepting that each party’s primary position is to be the major caregiver, the amount of time which each party offers to the other actually meets the definition of substantial and significant time.

131That is to say, provided a Court makes an order which catches school days, weekend days, holidays and special days and which allows a parent an opportunity to be involved in a child’s daily routine, then, the definition is met.

132The Applicant’s primary position is that the children should live with him and spend time with the Respondent on the terms that he has proposed. If his arrangements were put into place by the Court, then the result would be that the Respondent would be spending substantial and significant time with the children.

133Conversely, when one has regard to the content of the Respondent’s Minute of proposed parenting orders, again, the time which she says the children should spend with the Applicant would meet the definition of substantial and significant time.

134Whilst, at first glance, the parenting dispute in this case would appear to have been very bitterly fought with parties occupying very polarised positions, the reality is that each party acknowledges that the children should spend substantial and significant time with the other parent. At the end of the day, the actual ambit of dispute between the parties is not as wide as a first reading of the massive volume of material filed in the case would tend to indicate.

135Having made those observations, the Court will return to the task which is set by s 89AA(1) of the Act.

136There is now High Court authority for the proposition that establishing that it is reasonably practicable for an equal time order to be made is a statutory condition which must be fulfilled before the Court has power to make a parenting order under s 89AA (MRR v GR (2010) FLC (93-424)). That is to say, it has been described as a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.

137It seems to the Court that there is no requirement for it to address the provisions of s 89AA(1)(a) and (b) in any particular order.

138In the particular circumstances of this case, the Court considers the appropriate approach is to look firstly at the question of whether or not the requirement in s 89AA(1)(b) is made out.

139For reasons which will follow, the Court is not satisfied that an order providing for the children to spend equal time with each of the parties is reasonably practicable.

140The definition of reasonable practicability is to be found at s 89AA(5) of the Act. In deciding whether a particular set of arrangements is reasonably practicable, the Court must look at the actualities of the circumstances as they present to it.

141The parties live a very considerable distance from each other and the continuation of the interim orders put in place some time ago has meant that the children have already had to do a very considerable amount of travelling between the Respondent’s home in Suburb B and their school in Suburb A.

142Given that it is the position of the Applicant that the children should remain schooled at Suburb A, it is implicit that he would propose to continue living in the Suburb A area.

143So, to make an equal time order would result in the children having to undertake a very significant amount of travelling during school terms, for the rest of their school days.

144The Court must take into account the impact that such an arrangement would have upon the children. The Court does not consider that the impact would be positive, quite the contrary. The amount of travelling time the children would lose in a motor vehicle each fortnight represents an enormous wasted opportunity for the children to spend that time more productively and more enjoyably.

145Those considerations alone sway the Court away from the idea of making an equal time order. However, for reasons which will be amplified below, given the history of caregiving to this point in their lives, the Court is a long way from satisfied that changing the children’s current arrangements under which they live with the Respondent as primary caregiver, to an equal time arrangement, would be an arrangement with which the children could cope comfortably.

146Furthermore, it seems to the Court that it is likely to be the case that equal time arrangements work at their best where there is a strong co‑operative parenting arrangement in place between the parents of children. That is to say, the parents need to share the same values, priorities and aspirations and they need to be reasonably closely aligned in terms of their attitudes to the actual practices of parenting. The Court is not entirely sure that the parties share the common values which would tend to support the implementation of an equal time arrangement.

147Otherwise, whilst the Court has said above that it is likely that the currently very poor relationship between the parties will improve over time, in the short term at least, the Court has its doubts about the capacity of the parties to communicate with each other and to resolve the types of difficulties which might arise in the implementation of an equal time arrangement.

148So, for all of those reasons, the Court is not satisfied that the provisions of s 89AA(1)(b) are satisfied. By application of the reasoning in MRR v GR (supra), the s 89AA(1) exercise ends.

149It falls now to the Court to work through the s 89AA(2) pathway.

150Again, for reasons which hopefully will become obvious below, the Court is satisfied that regardless of its decision regarding primary caregiving responsibilities, the children should spend substantial and significant time with each of the parties.

151Again, for reasons which should become clearer below, the Court should indicate that it is amply satisfied that the making of orders for the children to spend substantial and significant time with each of the parties is certainly reasonably practicable.

152Section 89AA(2)(c) of the Act takes the Court back to the issue of the best interests of the children.

153The Court is then taken to s 86A of the Act, to be found in the same Division of Part 5 which houses s 89AA.

154The Court is then further taken back to the provisions of s 66A of the Act, which provide as follows.

66A. Child’s best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

155How then does a Court determine what is in a child’s best interests? The answer is to be found in s 66C of the Act, which provides as follows:

66C. How a court determines what is in a child’s best interests

(1)Subject to subsection (6), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

(2)The primary considerations are —

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(3)Additional considerations are —

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; and

(b)the nature of the relationship of the child with —

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

and

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

and

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; and

(f)the capacity of —

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs; and

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; and

(h)if the child is an Aboriginal child or a Torres Strait Islander child —

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

and

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and

(j)any family violence involving the child or a member of the child’s family; and

(k)any family violence order that applies to the child or a member of the child’s family, if —

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

and

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

(m)any other fact or circumstance that the court thinks is relevant.

(4)Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents —

(a)has taken, or failed to take, the opportunity —

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

and

(b)has facilitated, or failed to facilitate, the other parent —

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child;

and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(5)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

(6)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

(7)For the purposes of subsection (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right —

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary —

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.

156The Court has had the opportunity to review all of the admissible evidence offered by each of the parties and it has also taken into account the evidence arranged by the ICL, including of course, the evidence of the single expert.

157The findings below will reflect the Court’s acceptance, or otherwise, of individual areas of the large and complex body of evidence put to the Court.

158Firstly, the Court will deal with the two primary considerations.

159Happily, each of the parties sincerely acknowledges the benefit to the children of having a meaningful relationship with the other party.

160Each of the parties has proposed that the children should spend regular and extensive periods of time in the care of the other parent. Regardless of the decision of the Court regarding primary caregiving responsibilities, it is highly likely that the children will continue to have a meaningful relationship with both parties.

161As for the second of the primary considerations, the Court is amply satisfied that whether it makes orders as proposed by the Applicant, or as proposed by the Respondent, or somewhere in between, the children will be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

162That is to say, the Court is amply satisfied that each of the parties would protect the children from this type of harm and would not allow them to be subjected to, or exposed to, abuse, neglect or family violence.

163So, in conclusion, there is nothing in the primary considerations which tips the scales in favour of one party or the other.

164As for the additional considerations, clearly, many thereof are not relevant or not particularly relevant.

165Perhaps at this point the Court might indicate which specific provisions have no application. Those are the considerations which are the subject of subparagraphs (h), (j) and (k) of s 66C(3).

166Moreover, s 66C(3)(e) is not particularly relevant because regardless of the final orders to be made by the Court, the children’s rights to maintain personal relations and direct contact with both parties will be protected.

167As for s 66C(3)(g), there is nothing particularly significant about the maturity, sex, lifestyle and backgrounds of the children or of the parties which is particularly relevant. This consideration also speaks of other characteristics of the children that the Court might think relevant and in that respect the Court is mindful of the evidence regarding the learning difficulties of one of the children. Other than in that respect, there is nothing particularly unusual about the circumstances of the two children or of the parties themselves.

168As for s 66C(3)(l), the strong impression gained by the Court is that both parties are substantially litigation fatigued. The Court is satisfied that each of the parties will accept the final decision of this Court or of any higher Court. The making of one particular set of orders, or another, in the circumstances of this case, is not likely to increase or decrease the prospects of further litigation.

169This is a case which will turn principally on the Court’s determinations in respect of s 66C(3)(a), (b), (c), (d), (f) and (i) issues.

170Apart from the considerations referred to immediately above, s 66C(3)(m) has no application given that there are no other facts or circumstances which the Court thinks are relevant.

171Without wishing to indicate any particular order of importance, the Court will simply work through the list of relevant additional considerations, as they appear in the statute.

172The Court will deal firstly with any views expressed by the children and any factors which the Court thinks are relevant to the weight to be attached to such evidence.

173At the outset, there are a couple of things which need to be said quite clearly.

174The first thing to say is that at ages seven and nine the children are far too young to be making their own decisions about where they will live and how much time they will spend with the other parent. It is for the adults involved in the case to be making the necessary decisions, and failing agreement, it is the duty of the Court to make the final decision.

175More importantly, unfortunately, the breakdown of this relationship has occurred in most acrimonious circumstances and there is no doubt that the children have been exposed to the high level of conflict between the parties to a much greater extent than would have been desirable.

176At this juncture, the Court is not necessarily pointing the finger of blame more in the direction of one party than the other. Suffice to say the Court is satisfied that both parties could have done far more to shield the children from the high level of conflict which has developed since separation and in which all the grandparents have also been caught up.

177In all the circumstances, the Court will accept the truth of what the single expert has reported the views of the children to be, but the fact that they have been so embroiled in the conflict leads the Court to tread very cautiously when ascribing appropriate weight to such evidence.

178The proceedings have been on foot for a very long time and the single expert has provided evidence of material changes in the stated views of the children from one report to another and that also fortifies the Court’s decision to exercise caution when it attaches the appropriate weight to the evidence in this area.

179Further, at paragraphs 140-151 (inclusive) of the single expert’s report dated 17 October 2012, there is detailed reference to the undue influences to which the children have been subjected.

180In all of the circumstances, the Court is reluctant to attach much weight to any views about future living arrangements which may have been expressed by the children to either party or to the single expert.

181Next, there is the question of the nature of the relationship of the children with each of the parties and with any other significant person.

182In a qualitative sense, the Court is satisfied that the children have a close and loving relationship with each of the parties. However, the more difficult question is whether or not the children have a stronger relationship with one party over the other.

183Of course, there is no scientific testing procedure which enables the strengths of relationships between children and parents to be accurately measured and recorded.

184However, notwithstanding any contrary sentiment which may have been expressed by the single expert, the Court is satisfied that the children are likely to have a stronger relationship with the Respondent than with the Applicant. This is not a criticism of the Applicant.

185It seems to the Court that it is likely that the children have the stronger relationship with the Respondent because it has been the Respondent who has been the primary caregiver to the children, not just after separation but during the time when the relationship was intact.

186The Court is satisfied that for the majority of the time that the parties lived together, each of them followed the traditional role. That is to say, the Court is satisfied that the Applicant was the primary breadwinner for the family whilst the Respondent was the primary carer to the children. That is not to say that the Applicant did nothing to assist the Respondent to care for the children. However, the Court does accept the evidence of the Respondent that it was she who was mainly responsible for the day to day care of the children.

187As importantly, and notwithstanding the criticisms of the Applicant, the Court is satisfied that the Respondent was, during the course of the relationship, a very loving and competent mother.

188The Court’s conclusion in this respect is to some extent fortified by some of the evidence the Applicant himself gave from the witness box. The Applicant said that, if the circumstances of the separation had been different, he would have considered allowing the Respondent to move back into the family home to care for the children on a full time basis, whilst he made arrangements to live elsewhere.

189Of course, the reality was that the Respondent ended the relationship to further her relationship with Mr Reeves and that being so it was never a viable option for the Respondent to move back into the family home and to occupy it to the exclusion of the Applicant.

190However, the very fact that the Applicant could consider such an option does suggest to the Court that he had acknowledged the stronger relationship the children had with the Respondent and that he had no real concerns about her capacity to care for them.

191It is also necessary for the Court, under s 66C(3)(b), to take into account the nature of the relationship between the children and other significant persons.

192This leaves the Court to consider the evidence relating to Mr Reeves.

193It does need to be said that there were times during the trial when the Court needed to remind itself that this was not a parenting dispute between the Applicant and Mr Reeves, but rather, between the Applicant and the Respondent. That is to say, Mr Reeves was never a party to the proceedings and his involvement in the trial comes about simply because he is the partner of the Respondent and so, regardless of the outcome of these proceedings, the children will have ongoing contact with him.

194Given the circumstances surrounding the breakdown of the relationship, it is hardly surprising that there is such a conflictual relationship between the Applicant and Mr Reeves. No more need be said.

195The reality, which the Court acknowledges the Applicant is now accepting, is that the children have lived in the same household with Mr Reeves since early 2011 and even if primary caregiving responsibilities are vested in the Applicant, the children will still continue to have substantial contact with Mr Reeves. In all the time the children have lived in the same household as Mr Reeves, they have come to no harm in his company. The primary caregiver to the children has been the Respondent, not Mr Reeves.

196Bearing in mind that Mr Reeves is not applying for any parenting orders in his favour, it is important not to overstate the importance of the nature of the relationship the children have with him.

197For present purposes, suffice to say that the Court accepts the conclusions of the single expert as contained in paragraphs 100-102 (inclusive) of his report dated 17 October 2012.

402Indeed, neither party appeared to invite the Court to depart from the usual practice which is to assess contributions globally.

403There is also a long line of authority which holds that the process of assessment of contributions is not to be conducted as if it were a strictly mathematical or accounting exercise. This is particularly so in the case of long relationships and it has to be said that this relationship was reasonably lengthy, standing at about eight and a half years.

404Furthermore, this was a relationship which produced two children and so the weight to be attached to s 205ZG(4)(c) contributions will be generally much greater than it is in childless relationships. Certainly, the assessment of s 205ZG(4)(c) contributions cannot be undertaken from a strictly mathematical standpoint.

405There is no doubt that during the course of the relationship the parties fulfilled the traditional roles of the Applicant being principal breadwinner and the Respondent being principal homemaker and full time principal caregiver to the children.

406The Applicant has set out at paragraph 65 of his trial affidavit a schedule of the taxable income earned by him for the years ended 30 June 2003 to 30 June 2012.

407The Court was not able to find in the material a corresponding table for the Respondent, but the Applicant himself says that the income generated by him over the years was often split with the Respondent, for taxation purposes, so as to obtain a legitimate advantage.

408In the course of closing submissions, as might be expected, counsel for each of the parties urged the Court to take into account particular features of the evidence which might favour the case of each party respectively insofar as the assessment of contributions is concerned.

409In this case, as in so many others of its kind, there are features of the evidence which operate in favour of one party but which are balanced by features of the evidence which operate in favour of the other party.

410It is true that most of the financial contributions made during the course of the relationship came from the Applicant. However, it is also true that the Respondent has made substantial s 205ZG(4)(c) contributions and the authorities hold that such contributions as have been made by the Respondent must be given appropriate and substantial weight and not simply token recognition.

411The Applicant did commence the relationship with property of greater value than that introduced by the Respondent. The Applicant’s family also provided some financial assistance for the parties, and in the Court’s view such assistance should be seen as a contribution on the part of the Applicant.

412However, on the other side of the ledger, the Court is persuaded that the financial advances made by the Respondent’s parents, for the benefit of the parties, should be treated as s 205ZG(4)(a) contributions strengthening the case of the Respondent.

413That is to say, s 205ZG(4)(a) speaks of direct of indirect financial contributions made by or on behalf of a de facto partner. The evidence satisfies the Court that the advances made by the Respondent’s parents should be treated as financial contributions made on her behalf. The Court also takes into account the purposes for which the advances were made, namely, to enable the Applicant to generate income for the support of the family.

414The Respondent’s father said, and the Court accepts, that there was no binding contractual arrangement made at the time of the two $50,000 advances. Further, the Respondent’s father said, and the Court accepts, that the arrangement was very loose, namely, that the money would be repaid one day, if and when the Applicant and the Respondent were able to repay. That day is unlikely to arrive.

415Standing back and looking at the big picture, this was a long and very eventful financial relationship at the conclusion of which there is now about $738,011 in value in net property available for division.

416Having had an opportunity to review the relevant financial evidence and to consider the submissions of counsel, the Court has come to the view that the various contributions of the parties, assessed on a global basis, should be considered to carry equal value.

417That being so, given the Court’s findings after the completion of step one of the usual four step process, it follows that each party should, at the end of the day, be left with value out of the pool of $369,005.

Section 205ZD(3) matters

418Having determined at the conclusion of step two of the usual four step process that there should be an equal division of the property the subject of the relevant asset pool set out above, it now falls to the Court to determine whether either party should have an increased share in the joint property of the parties as a consequence of any of the relevant s 205ZD(3) matters, considered in conjunction with each other.

419Section 205ZD(3) of the Act provides as follows:

Section 205ZD

(3)The matters to be taken into account are —

(a)the age and state of health of each of the de facto partners;

(b)the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment;

(c)whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years;

(d)commitments of each of the de facto partners that are necessary to enable the partner to support —

(i)himself or herself; and

(ii)a child or another person that the party has a duty to maintain;

(e)the responsibilities of either party to support any other person;

(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under —

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

(g)a standard of living that in all the circumstances is reasonable;

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(i)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(j)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(k)the need to protect a party who wishes to continue that party’s role as a parent;

(l)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;

(m)the terms of any order made or proposed to be made under section 205ZG in relation to the property of the parties;

(n)any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship;

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p)the terms of any financial agreement or former financial agreement that is binding on the parties.

420Before looking at the various s 205ZD(3) matters, it might be appropriate at this point to say something briefly about the provisions of s 205ZG(4)(d) of the Act.

421This is the provision which speaks of the effect of any proposed order upon the earning capacity of either de facto partner.

422Fortunately, in this case, the earning capacities of both parties would not be affected by any order the Court is likely to make under Part 5A of the Act.

423As for the Respondent, she is presently not exercising any earning capacity and given her circumstances generally it is unlikely she will do so in the foreseeable future.

424As for the Applicant, the question is whether or not he will be able to afford to retain Property A for his sole benefit going forward, not whether he will need to sell his business.

425It is not necessary for the Applicant to maintain ownership of Property A in order for him to generate his income. It is unlikely that the Applicant would have to sell his business plant and equipment in order to satisfy an order for payment of a lump sum to the Respondent. The Applicant may well have to consider selling his interest in Property A, but it will not affect his earning capacity if that has to occur.

426Returning now to the relevant s 205ZD(3) matters, the first thing to say is that both parties are young (their ages appear above) and both enjoy good health.

427The property and financial resources of the parties are as set out above.

428As for the incomes of the parties, the Court has already referred to the content of paragraph 65 of the Applicant’s trial affidavit, which sets out a history of his taxable income figures. The Court notes that the Applicant’s taxable income for the year ended 30 June 2012 was $63,033. The Applicant would have been a sole trader for the whole of that year.

429The Court is satisfied that the Applicant is able to earn a reasonably good living.

430As for the Respondent, she has not been a candidate for paid employment in the workforce for some time now and her skill base is very limited.

431The Respondent has the full time care of a child aged just over 12 months and it is possible that she and Mr Reeves may have further children.

432As for the financial resources of the parties, there was a suggestion on the part of the Applicant that the wealth of the Respondent’s family should be considered to be a “financial resource” held by the Respondent and a matter which should be taken into account at step three of the usual four step process.

433The evidence of the Respondent’s father is that he has provided considerable financial support to the Respondent, particularly in terms of funding her legal costs. During the course of the trial, the amount spent by the Respondent in conducting the litigation has been estimated variously at $400,000, $500,000 and $800,000. It is likely that the highest of those estimates includes financial support provided by the Respondent’s father other than to cover legal costs and the expenses of expert witnesses and the like.

434In any event, regardless of the precise figure involved, it is clear that the Respondent’s parents have been extremely supportive of the Respondent since the breakdown of the relationship, as indeed they were generous to both parties during the course of the relationship.

435Much was made of the fact that very recently the Respondent’s father has set up what appears to be a fairly standard form discretionary trust. The Respondent is included in the class of specified beneficiaries.

436However, there is no evidence that any income or capital of the trust has been apportioned to the Respondent. The Respondent’s mother and father are the sole trustees of the trust.

437If it is a bare discretionary trust, then the only right which the Respondent holds is a right to ensure that the trustees “consider” making distributions in her favour.

438It seems to the Court that the focus in the evidence upon the existence of this trust was perhaps something of a distraction. This is because the Respondent’s parents do not need to use a trust in order to provide financial assistance to the Respondent. That is to say, whether or not there is any trust in existence, it is open to the Respondent’s parents to make gifts to the Respondent at any time of their choosing, as indeed they have done so in the past.

439All in all, the Court is bound to say that it is not persuaded to the view that the fact that the Respondent has well-resourced and generous parents is a basis for reducing her share in the joint property of the parties earned as a consequence of her contributions over a quite long relationship.

440Next, the Court is to consider the issue of the responsibility of the parties to care for children.

441As a consequence of the Court’s determination of the child related proceedings, the Respondent will be left with a greater responsibility, going forward, for the care and control of the children of the relationship.

442Next, there is s 205ZD(3)(d) and (e) to consider. The Applicant has a commitment to support the children of the relationship. As for the Respondent, she too has a commitment to support the children of this relationship and she has an independent duty to support her youngest child.

443The Court now turns to consider s 205ZD(3)(f)(ii) of the Act, which speaks of, amongst other things, the eligibility of either party for any benefit under a superannuation fund or scheme.

444Under this head, the Applicant carries an advantage. He will retain a superannuation entitlement of $15,490 whereas the Respondent has no superannuation.

445Admittedly, given that the Applicant is still only 41 years of age, it will be some time yet before he is able to access his superannuation entitlement. Still, it is a benefit which the Respondent does not have.

446Next, there is s 205ZD(3)(g) and (l) to consider which, in the particular circumstances of this case, might be considered jointly.

447Whilst the parties are not asset rich, following the delivery of this judgment each party will be left with property of not insignificant value. The Applicant is able to earn a reasonably good income and the Respondent has a reasonably well financially resourced partner who has the benefit of the ownership of an unencumbered property of reasonably high value.

448As for s 205ZD(3)(m) of the Act, the Applicant is paying child support for the children in accordance with the operation of the usual statutory provisions. If either party is of the view that the operation of the statutory formula is not producing a just and equitable outcome, then each has rights which are exercisable away from the Court pursuant to the provisions of the child support legislation.

449Otherwise, there are no other s 205ZD(3) matters which the Court considers have any relevance and no other facts or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.

450There is a line of authority which holds that the task of the Court at step three of the usual four step process does not involve any indulgence in any form of purported social engineering. That is to say, the power of the Court to make an adjustment by reason of s 205ZD(3) matters is not to be exercised purely to achieve an equalisation of the financial positions of parties who once were involved in a de facto relationship but have since gone their separate ways.

451Standing back and looking at the picture overall, the Court is not persuaded to the view that a consideration of the relevant s 205ZD(3) matters should lead to any adjustment in favour of either party.

Just and equitable

452Finally, it falls to the Court to satisfy itself that any orders it proposes to make will effect a just and equitable outcome. Indeed, the duty of the Court in this respect is the subject of s 205ZG(3) of the Act, as set out above.

453Obviously, the process of determining whether a particular outcome will effect a just and equitable outcome is highly subjective in nature. Each of the parties will no doubt have their own views on what a just and equitable outcome might look like.

454The Court has found that the total value in the relevant asset pool is $738,011.

455The Court has determined that at the conclusion of steps two and three of the usual four step process each party should be left with $369,005 in value. The Applicant wants to retain Property A, if he is able, and he will be given a reasonable opportunity to do so. However, if he is not able to raise the necessary finance in order to pay out the Respondent, then Property A will need to be sold and the Court will need to make an order which ensures that the sale proceeds are divided in a manner which will effect an equal division overall of the property of the parties, as has been determined by the Court.

456At present, the Respondent holds property with a value, or a notional value, calculated as follows.

457Firstly, the Respondent holds furniture with a value of $3,670, jewellery with a value of $1,850, an addback of $10,500 from the sale of the Mitsubishi motor vehicle and an addback of $23,000 representing cash taken at separation from the partnership account.

458On the Court’s calculations, the Respondent already has $39,020 in value. Further, as the Court calculates it, the Respondent would need to receive from the Applicant a payment of $329,985 in exchange for her interest in Property A and in those assets under the control of the Applicant, in order to effect the equal division to which reference has already been made.

459It is not clear to the Court whether the Applicant is fixed on the idea of remaining a resident of the Suburb A area. Presumably, the Applicant was intending to abide the outcome of the child related proceedings before making further plans. If Property A has to be sold, it was not clear to the Court whether or not the Applicant would be able to acquire a property of lesser value within the Suburb A area. Alternatively, the Court is not sure whether the Applicant might be able to rent a suitable property in the Suburb A area.

460It is of course the right of the Applicant to live where he chooses, and it may be that, as a consequence of the delivery of these reasons, the Applicant chooses to reside at a location closer to the principal place of residence of the children. This is purely a matter for him.

461This relationship was long and eventful and it was blessed with the arrival of two children. Notwithstanding their various criticisms of each other, the Court is satisfied that over the course of this relatively long relationship each of the parties made strong s 205ZG(4)(a), (b) and (c) contributions, different in nature but equal in value.

462In the Court’s view, it is appropriate that the fruits of the respective labours of the parties during the course of the relationship should be shared equally. The Court is satisfied that its proposed orders will effect a just and equitable outcome.

463It does seem to the Court that it may be a matter of some practical difficulty for the Applicant to be able to raise the necessary finance to acquire the interest of the Respondent in Property A, even if he was to sell some of the items in his possession.

464It may be that the Applicant will choose to see Property A sold and to take a cash payment. The Court needs to address that eventuality in its proposed orders.

465Leaving aside the interest of the parties in Property A, on the Court’s calculations, the Applicant is already in control of property with a value, or a notional value, of $193,900, whilst the Respondent is in control of property with a value, or a notional value, of $39,020.

466Thus, to achieve an overall equal division, on the Court’s calculations, the Respondent would need to take the first $154,880 resulting from the sale of Property A, with the remainder then being divided equally between the parties. Counsel for the parties are requested to check the algebra used by the Court in reaching this conclusion.

Payment of expert witness costs and costs of the ICL

467As noted above, another Magistrate of the Court made certain orders on 1 August 2011 covering the costs to be incurred initially in relation to the engagement of Dr Menaglio as single expert.

468The order in question was made on the assumption that the total of the costs of the single expert would be something in the order of $17,490. In fact, the actual costs charged and to be charged by Dr Menaglio will far exceed this figure of $17,490.

469Unfortunately, the Court is presently a little unsure about the detail of responsibility to date for payment of the subsequent costs charged by the single expert.

470As already noted above, Dr Menaglio was appointed as single expert before the ICL was engaged. The Court is not sure about the extent to which the ICL has covered Dr Menaglio’s costs, or is liable to cover them, following her engagement.

471On 27 February 2013, the Court received a letter from the Director – Client Services – Legal Aid Western Australia requesting that, in the absence of the ICL, the Court delay the making of any final order in relation to costs pending the return to Western Australia of the ICL. The same letter confirms that the parties have contributed $7,382 towards the ICL’s costs, although the Court is not sure whether that is a joint contribution or the contribution of each of them. Further, the letter advises that the ICL’s costs are likely to exceed $7,382.

472Returning then to the order of the Court made on 1 August 2011, which was implemented before the engagement of the ICL, the Court has been invited by the Applicant to discharge the provisions of paragraph 5 of those orders. That is to say, the Applicant asks the Court to leave with the Respondent the greater share of responsibility for payment of the initial fees of Dr Menaglio.

473In support of this submission, counsel for the Applicant submitted that it was noteworthy that Dr Menaglio’s fees have been increased substantially because of a request by the Respondent’s solicitors for the single expert to peruse a large quantity of additional material, which had not been requested by the single expert. This is a submission which finds favour with the Court.

474At first blush, it seemed to the Court that there may be a difficulty for it making an order discharging the order of the Magistrate made on 1 August 2011, because on the face of it, such order appears to be a final order, that is to say, not an interim order.

475However, on reflection, it seems to the Court that its powers under s 237 of the Act are wide enough to enable it, in effect, to make an order which cancels out the effect of the Magistrate’s order of 1 August 2011 as it relates to costs.

476Thus, there will be an order made that the provisions of paragraph 5 of the orders of the Court made on 1 August 2011 will be discharged. That still leaves the Court to hear submissions from the ICL in relation to her costs, which may possibly include some costs of Dr Menaglio which she has met.

477Thus, insofar as the costs of the child related proceedings are concerned, the Court will be discharging the relevant order made on 1 August 2011, as it affects only the two parties, and it will otherwise reserve the costs of the ICL and any other costs issues which the parties themselves or the single expert may wish to raise.

478Finally, under this head, there is the question of the costs of the financial single expert witness engaged in respect of the financial proceedings. The Court will deal with this issue quite shortly.

479On 11 September 2012, the Court made an order appointing Ms Delbridge‑Bailey as single expert witness to value both the interest of the Applicant in the business he now conducts and also the interest of the parties in the former partnership between them. The Court gave to each of the parties liberty to apply at trial in respect of the issue of the ultimate apportionment of the costs of this expert.

480This order was made against the strong objections of the Applicant, who would have preferred the engagement of a much less expensive witness.

481The key issue which was troubling the parties in this respect was the question of whether or not there is any goodwill component to the business operated by the Applicant. The case of the Applicant throughout is that, by its very nature, the type of business being conducted by the Applicant would be highly unlikely to have a saleable goodwill component.

482At the end of the day, the stance taken by the Applicant was vindicated and it really should have come as no great surprise to anyone that this very small operation being conducted by the Applicant would, in the circumstances, be unlikely to carry any goodwill component.

483Again, unfortunately, the Court is not entirely sure at this point whether the parties have each paid half of Ms Delbridge-Bailey’s fees or whether it has been the Respondent who has carried the responsibility to date.

484Either way, the Court is satisfied that as it was the choice of the Respondent to engage this more expensive witness in circumstances where her conclusions were supportive of the Applicant’s case, it would be reasonable for the Respondent to meet the costs of this witness.

485Therefore, there will be an order that the Respondent bear responsibility for the costs of the financial single expert witness Suzanne Delbridge-Bailey.

Proposed orders

486Subject to hearing from counsel as to the form of orders necessary to give effect to these reasons, the following orders will be pronounced:

1.The provisions of all parenting orders currently in force in respect of the children, namely, Child A (born [in] 2003) and Child B (born [in] 2005) be and are hereby discharged.

2.The parties have equal shared parental responsibility for the children.

3.The children live with the Respondent.

4.The children spend time with the Applicant as follows:

(a)for one half of all school holiday periods, with liberty to both parties to apply for further definition of this order if required; and

(b)during school terms, from after school Friday until the commencement of school the following Monday in alternate weeks and from after school Thursday until the commencement of school Friday in intervening weeks.

5.With effect from the commencement of second school term in 2014, the provisions of paragraph 4(b) hereof be varied so as to substitute the word “Thursday” for the word “Friday” appearing in the first line thereof, provided that the Applicant is living in reasonably close proximity to the place of schooling of the children, with liberty to both parties to apply in this respect, if necessary.

6.Notwithstanding the provisions of paragraphs 3, 4 and 5 of these orders:

(a)the children spend reasonable time with each of the parties on Christmas Day and on their respective birthdays;

(b)the children spend reasonable time with the Applicant on his birthdays and spend reasonable time with the Respondent on her birthdays;

(c)the children spend reasonable time with the Applicant on each Fathers’ Day and spend reasonable time with the Respondent on each Mothers’ Day.

7.The Respondent be at liberty to enrol the children at School B for the commencement of second school term in 2013.

8.As soon as reasonably practicable, the Respondent authorise the Principal of School B to provide to the Applicant copies of the children’s school reports, school newsletters and any other material which is usually provided by the school to the parents of students.

9.In order to give effect to the provisions of the above orders, the parties bear equal, or nearly equal, responsibility for transporting the children, with liberty to both parties to apply for further definition of this order, if necessary.

10.Within the next 42 days, the Applicant pay to the Respondent the sum of $329,985.

11.In the event that the Applicant does not comply with the provisions of paragraph 10 of these orders, then the said property be sold for the best price reasonably obtainable and the net proceeds of sale be disbursed in the following manner:

(a)firstly, in payment to the Respondent of the sum of $154,880; and

(b)secondly, in equal division of the balance between the parties.

12.Each of the parties have liberty to apply, if necessary, in relation to the terms and conditions of the sale of the said property.

13.Upon compliance with the provisions of paragraph 10 of these orders, the Respondent transfer to the Applicant all her right, title and interest in Property A (being the property the subject of Certificate of Title Volume XXXX Folio XXX).

14.All of the right, title and interest of the Respondent (if any) in the partnership known as “ABC Partners” (including in any loan account) vest absolutely in the Applicant.

15.Otherwise:

(a)all the right, title and interest of the Applicant (if any) in any item of property presently in the possession of the Respondent vest absolutely in the Respondent.

(b)all the right, title and interest of the Respondent (if any) in any item of property or superannuation entitlement presently in the possession of the Applicant vest absolutely in the Applicant.

16.The provisions of paragraph 5 of the orders of the Court made on 1 August 2011 be and are hereby discharged.

17.The Respondent bear responsibility for the costs of the financial single expert witness, namely, Suzanne Delbridge-Bailey.

18.Otherwise, the costs of both parties and of the Independent Children’s Lawyer be and are hereby reserved.

19.The said proceedings otherwise be and are hereby dismissed.

I certify that the preceding [486] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary