SHAKIR & SHAKIR
[2014] FamCA 796
•19 September 2014
FAMILY COURT OF AUSTRALIA
| SHAKIR & SHAKIR | [2014] FamCA 796 |
| FAMILY LAW – CHILDREN – Equal shared parental responsibility order made by consent – Where the husband seeks the children reside with him and spend substantial and significant time with the wife – Where the wife seeks an equal time arrangement – Where ss 65DAA(1),(2) and (5) of the Family Law Act 1975 (Cth) are relevant – Where the wife has significant working commitments and will be assisted by her family – Where the husband asserts the wife will not be available for an equal time arrangement because of her working commitments – Where the husband is the full time carer for his uncle – Where the family consultant recommended that the children spend significant and substantial time with each parent with time to include the school week, weekends and holiday periods – Where it is found to be in the children’s best interests and reasonably practicable to spend equal time with each parent. FAMILY LAW – PROPERTY – Where both parties seek an order be made pursuant to s 79 of the Family Law Act 1975 (Cth) – Where it is found to be just and equitable to make an order altering property and adjusting liabilities – Consideration as to whether or not share rights the wife has received under a new employment contract are to be treated as property or as a financial resource – Where it is found that the wife’s share rights are property and it is necessary to consider contributions made to the acquisition of that property – Where because of the characteristics of the share options, they are to be placed in a separate pool – Where the wife submits that the future of the share prices is unknown – The wife is a highly paid senior executive – The husband is not in any paid employment – Where the wife earned the more substantial income during the marriage and fulfilled a role as homemaker and parent –Where the wife has made significant direct financial contributions post separation – Where the parties agreed there should be an assessment of contribution in the wife’s favour of 65 percent to her and 35 percent to the husband – Where the wife submits that there would be an adjustment to the husband under s 75(2) of no more than 5-10 percent – Where the husband seeks that the adjustment should be 20-25 percent (or if the wife’s share rights are treated as a financial resource then 25-30 percent) – Where the wife has a substantial earning capacity and has substantial ability to generate capital in the future – Where the wife submits the husband has failed to exercise his earning capacity – Where the wife submits a lack of disclosure in relation to the husband’s involvement in family companies and receipt of trailing commissions – Finding made that there should be a 20 percent adjustment of s 79(4)(d)-(g) factors in the husband’s favour – Where it is just and equitable to make a superannuation splitting order as sought by the wife – Where orders are made that the husband receive 55 percent of the net asset pool and the wife receive 45 percent of the net asset pool – Where value of the share rights are uncertain an order is made to defer some payments until after the anniversary date of each of the share rights. FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband sought a spousal maintenance order of $1,000 per week for the next 13 years – Where the wife seeks no order be made – Consideration of the statutory requirements – Where it is found not to be proper to make any order for spousal maintenance – Husband’s application for spousal maintenance dismissed. |
| Family Law Act 1975 (Cth) |
| Best & Best (1993) 16 Fam LR 937 Smith & Smith (1991) FLC 92-261 |
| APPLICANT: | Ms Shakir |
| RESPONDENT: | Mr Shakir |
| FILE NUMBER: | SYC | 4296 | of | 2012 |
| DATE DELIVERED: | 19 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 8 - 11 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Hamish Cumming Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Johnston |
| SOLICITOR FOR THE RESPONDENT: | Tiyce Partners |
Orders
The parties shall have equal shared responsibility for the children, M born … 2006 and R born … 2008 (“the children”).
1A. During school term the children shall live with the parties in a two week cycle as follows:
1A.1.In week 1 with the Mother from after school Wednesday until after school the following Wednesday; and
1A.2.In week 2 with the Father from after school Wednesday until after school the following Wednesday.
During terms 1, 2 and 3 school holidays, the children are to remain with the parent with whom they are living at the end of school term until 5.00 pm on the middle Friday of the school holidays and the children are then to remain with the other parent until the first Wednesday of the next school term.
The children shall live with the parties during the term 4 summer school holidays by agreement, and failing agreement, as follows:
3.1.With the husband from the conclusion of school in December 2014 until 4.00 pm Christmas Day 2014; and from 9.00 am 5 January 2015 until 9.00 am 19 January in 2015, and each alternate year thereafter.
3.2.With the wife from 4.00 pm Christmas Day in 2014 until 9.00 am 5 January 2015 and from 9.00 am 19 January 2015 until after school on the first Wednesday of Term 1 in 2015, and each alternate year thereafter.
3.3.With the husband from 4.00 pm Christmas Day in 2015 until 9.00 am 5 January 2016 and from 9.00 am 19 January 2016 until after school on the first Wednesday of Term 1 in 2016 and each alternate year thereafter.
3.4.With the wife from the conclusion of school in December 2015 until 4.00 pm Christmas Day 2015; and from 9.00 am 5 January 2016 until 9.00 am 19 January in 2016 and in each alternate year thereafter.
3.5.Otherwise by agreement between the parties.
The children shall live with the parties at times of special significance as follows;
4.1.On the children’s birthdays by agreement and failing agreement the children shall live with the parent they are not living with at the time from after school until 6.00 pm on a school day and 10.00 am until 4.00 pm on a weekend.
4.2.With the wife on the wife’s birthday, where the children are otherwise living with the husband, from 5.00 pm to 8.00 pm on a week day and if on a weekend, from 10.00 am to 4.00 pm.
4.3.With the husband on the husband’s birthday, where the children are otherwise living with the wife, from 5.00 pm to 8.00 pm on a week day and if on a weekend, from 10.00 am to 4.00 pm.
4.4.With the husband on Good Friday from 10.00 am to 4.00 pm in each even numbered year.
4.5.With the wife on Good Friday from 10.00 am to 4.00 pm in each odd numbered year.
4.6.With the husband on Easter Sunday by agreement between the parties and failing agreement from 10.00 am to 4.00 pm in each odd numbered year.
4.7.With the wife on Easter Sunday by agreement between the parties and failing agreement from 10.00 am to 4.00 pm in each even numbered year.
4.8.With the husband on the weekend of Father’s Day from 6.00 pm Saturday until 7.00 pm Sunday.
4.9.With the wife on the weekend of Mother’s Day from 6.00 pm Saturday until 7.00 pm Sunday.
There be liberal telephone communication between the parents and the children.
The wife or any member of her family or other responsible person be responsible for collecting the children at the commencement of the period that the children are to spend time with her and she or any member of her family or other responsible person shall be responsible for delivering the children to the husband and or their school at the conclusion of her time with the children.
The husband or any member of his family or other responsible person be responsible for collecting the children at the commencement of the period that the children are to spend time with him and he or any member of his family or other responsible person shall be responsible for delivering the children to the wife and or their school at the conclusion of his time with the children.
Both parents shall:
8.1.Provide to the other parent as they are received copies of school reports and any other relevant materials and notification.
8.2.Authorise the children’s schools to provide the other parent with copies of the children’s school reports and homework.
8.3.Advise the other parent of parent/teacher meetings and school functions such as open days and awards functions.
8.4.Consult with the other parent in relation to the selection of schooling for the children.
8.5.Consult with the other parent in relation to the religious education of the children.
8.6.Advise of the residential or contact address and phone number(s) of the children and of any changes to that address.
8.7.Advise the other parent of an emergency and urgent message contact number to contact and of any changes to that number.
Each of the wife and the husband shall speak to the other in a respectful and polite manner and shall not denigrate the other party or any person they are in a relationship with in the presence and/or hearing of the children, and both parties are to use their best endeavours to ensure that no third party denigrates the other party or any person they are in a relationship with in the presence or hearing of the children.
The husband be restrained from smoking in or near the presence of the children, and he shall ensure that no other person in his household smokes in or near the presence of the children.
The parties are permitted to take the children out of the Commonwealth of Australia, provided that parent shall give written notice to the other parent at least six (6) weeks prior to the intended travel specifying the date and time of departure, the means of transport and all details pertaining to the travel including details of the airline, with whom the children will be travelling, intended destination, contact numbers and addresses for the children for the duration of the trip and the intended date and time of return.
Upon written notice being given by a parent pursuant to the previous paragraph the other parent shall within seven (7) days from the date of receipt of the said notice, advise the other parent if he/she will or will not sign documents so as to enable the children’s passports to be processed and made available to the travelling parent including, if relevant, provide to the other parent notice as to whether or not he or she will consent to signing all necessary passport applications and consent forms and providing the children’s birth certificate and any other associated documents required.
Neither party shall be permitted to take the children to a country where there is High Degree of Caution or higher DFAT travel warning, or which is not subject to the Hague Convention without the express consent of the other parent.
In the event either parent intends to travel with the children on a holiday within Australia, they shall first provide to the other parent an itinerary including dates, accommodation and contact details, no later than seven days prior to the holiday.
Pursuant to s.65DA(2) and s.62B Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Pursuant to s 79 of the Act an order be made in accordance with paragraphs 17 to 26 below.
Within 42 days of the date of these orders the parties do all things and sign all necessary documents to pay to the husband all monies (including interest) in the … controlled monies account.
Within 42 days of the date of these orders the wife shall pay to the husband the sum of six hundred and ninety one thousand, eight hundred and forty seven dollars ($691,847).
Pursuant to Section 90MTIA of the Act, whenever a splittable payment is payable in respect to the superannuation interest of Ms Shakir in the BT Superannuation Fund:
19.1.Mr Shakir is entitled to be paid an amount calculated in accordance with the regulations using the base amount in the sum of $170,984 at the operative date, being four days from the date of notice to the trustee of the fund.
19.2.There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
On or before each of 30 June 2016, 30 June 2017 and 30 June 2018 the wife pay to the husband an amount calculated by multiplying 62,893 x 55 percent x the share price of the shares in X Australia Ltd (“X”) as at 23 May 2016, 23 May 2017 and 23 May 2018 respectively after deducting from each of these three amounts the liability the wife has to pay taxation referrable to her receiving 62,893 shares in X (the wife’s taxation liability) at those dates respectively.
On or before 23 May 2016, 23 May 2017 and 23 May 2018 the wife will inform the husband in writing as to the amount of the proposed payment to him and how the amount of that payment has been calculated. In the event there is any dispute about those calculations and in particular the relevant share price or the taxation payable, the parties shall agree upon an expert to advise about those matters and failing agreement it shall be Mr MM from MM Associates Pty Ltd or his nominee.
Within 7 days of the date hereof the wife do all acts and things and execute all documents necessary to transfer her right title and interest in the Harley Davidson motor cycle registered number … and deliver the same to him.
The husband deliver to the wife the one karat white gold pendant.
Subject to these orders, each party be solely entitled to the exclusion of the other of all property and chattels of whatsoever nature and kind in the name or possession of that party as at the date of these orders.
Each party be solely liable for and indemnify the other against any liability, encumbering any item of property to which that party is entitled pursuant to the orders.
The parties do all things and sign all necessary documents to hold on trust for the children monies in the MLC education fund and withdrawals from that fund be used to assist the education of the children, with withdrawals to be made by the joint written consent of both parties. The monies can also be used for any other purpose for the benefit of the children jointly agreed by the parties in writing.
In the event that either party fails or refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, pursuant to Section 106A of the Act a Registrar of the Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and do such and all things and acts necessary to give validity and operation to such deeds, documents and instruments.
The application by the husband for spousal maintenance is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shakir & Shakir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4296 of 2012
| Ms Shakir |
Applicant
And
| Mr Shakir |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The wife is a highly paid senior executive level manager. Pursuant to interim orders made in July 2012, the children ordinarily live with the husband during the school week in school term and otherwise live with the wife on weekends and school holidays. This was on the condition that the wife made herself available from her demanding job to personally be with the children. She has organised her work arrangements so that the children have been with her for almost all of their leisure time over the last two years.
Throughout the marriage the wife earned the more substantial income and fulfilled a significant role as homemaker and parent. The parties have agreed that there should be an assessment of contribution in the wife’s favour of 65 percent to her and 35 percent to the husband.
The company for whom the wife has worked for twenty years was publicly listed in mid 2014. The wife entered into a new contract of employment with the new public company. That contract provides her with significant financial benefits.
An issue has arisen in the case as to whether or not share rights that the wife has received under that contract are to be treated as property or as a financial resource.
The husband is not in paid employment. The members of the husband’s household are Mr Y and the children. Mr Y is awaiting a heart transplant. The husband receives a carer’s pension in relation to Mr Y and a supporting parent’s benefit in relation to the children. The husband also receives spousal maintenance pursuant to an interim order and child support. The only other source of income the husband currently has is trailing commissions from his time as a financial services provider.
The parties apply for competing parenting orders with the husband seeking that the current interim arrangements be substantially confirmed on a final basis. The wife’s primary application is for a week about arrangement. Both parties have also proposed fall-back parenting proposals. Both parties seek that an order be made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and the husband seeks a final order for spousal maintenance on a continuing basis until the youngest child is 18 years of age.
APPLICATIONS
The final form of the applications sought by each of the parties in final submissions is set out in Schedule 2.
Both parties seek an order be made that the parents have equal shared parental responsibility for making decisions in relation to major long term issues in respect to the children.
The wife asserts she is able to arrange her working commitments to accommodate her parenting responsibilities and that she is able to be assisted by her sister Ms V and brother in law Mr V who live a short distance from the wife’s home.
It is the husband’s case that the wife is unable to have equal time or substantial and significant time with the children because she is not available at the times she says she is.
The wife seeks an equal time order with changeovers on Wednesday afternoon. In the event that the court finds that an equal time arrangement is not in the children’s best interests or otherwise not reasonably practicable, the wife’s alternate proposal is for the children to be with her for nine nights a fortnight during school term.
The husband’s primary proposal is that during school term the children ordinarily live with him and be with their mother from after school Friday until 7.00 pm Sunday for three out of four weekends (and on the fourth weekend be with him from midday on Saturday) and that the children spend time with their mother each Wednesday from after school to 7.00 pm. The husband’s fall-back position is that the children spend nine nights a fortnight with him during school term.
The parties substantially agree that the children should share time with their parents during school holidays, although the husband proposes the children be with their mother for more time than with him during term school holidays because of his primary proposal that they would otherwise ordinarily live with him most of the time during school term.
Proposals are also made by both parties for time on special occasions and other days.
In her Reply filed 11 February 2013, the wife sought that she pay to the husband an amount so that the net matrimonial assets be divided as to 75 percent to the wife and 25 percent to the husband. In her case outline, the amount the wife proposed she pay the husband was $250,845. The wife also sought that her superannuation be split so that the husband received a base amount from her superannuation in the sum of $170,984. The wife did not attempt to redo the mathematics in final submissions but proposed a split of net assets (excluding share rights) of 55 to 60 percent in her favour. It was agreed that the wife transfer the Harley Davidson motor cycle to the husband and the husband return to the wife a gold pendant.
The husband sought alternate orders for property alteration depending upon whether or not certain share rights held by the wife were included as property in the pool. If they were, he sought between a 55 and 60 percent division in his favour on a final basis. If they were not, he sought a 60 to 65 percent division in his favour on a final basis.
The husband seeks that the wife pay to him the sum of $1,000.00 per week by way of spouse maintenance. In his submissions counsel for the husband said the husband seeks this order until each of the children turn 18 years old (so for a period of 13 years). The wife opposed this order but her counsel submitted that if the court was inclined to make such an order it should be for no more than 12 months.
DOCUMENTS RELIED UPON
The documents relied upon by each of the parties are set out at Schedule 1.
SHORT HISTORY
The husband was born in 1970 and is currently 44 years of age.
The wife was born in 1970 and is currently 44 years of age.
The parties were married in 1994.
The parties’ first child M was born in 2006 and is currently eight years of age.
The parties’ second child R was born in 2008 and is currently five years of age.
The parties separated on a final basis on 30 June 2012.
CREDIT
Wife
Notwithstanding the wife’s obvious intelligence, she appeared on occasions to be somewhat nervous in the witness box. She also was on occasions keen to provide additional adverse information about the husband that was not strictly necessary to answer the question that had been asked. Although, on occasions when counsel for the husband complained that she was doing so, the additional information could be seen as reasonably responsive to the question that was being asked.
Overall, I thought that the wife attempted to answer questions in a fairly direct manner and I did not form an impression that she was attempting to fabricate evidence.
During cross examination, I did not allow the wife to be asked questions about the husband’s assertion that she had not properly provided all information to the real estate valuer for him to properly value the Suburb L units. Ultimately values were agreed in relation to those units. Counsel for the husband indicated that the questions he was asking were relevant to a possible costs application but he did not indicate that they went to the wife’s credit.
Counsel for the husband also asserted that the wife had not made a proper disclosure of her income on two financial statements. Whilst that is true, the wife had filed other sworn evidence which gave a clearer picture of her income. Counsel for the husband also asserted that the wife had not made a proper disclosure to Mr MM, and although I found the wife’s evidence that she was unable to replicate hard copies of documents that she had previously received from her employer questionable (particularly given her senior position with the company), I was left with the wife’s evidence that she had to rely on information that was online and held by a third party. The wife had provided that information to Mr MM. None of these matters significantly impact upon the wife’s credit.
Husband
The husband initially presented as reasonably guileless but my confidence in his answers diminished over time. On occasions he gave conflicting evidence to the same question in a very short space of time. I gained the impression that the husband sometimes had difficulty providing consistent answers to questions. Having said that however, the husband gave many responses which were adverse to his interests or different from the case that his lawyers were attempting to advance on his behalf. The husband frankly conceded that the wife was a beautiful person and beautiful mother and he could not say anything bad about her.
The husband has had considerable difficulties with the breakdown of the marriage. During the first day of the LAT hearing on 27 November 2013 the husband told me that the children pray every night that their parents will get back together again. He said it had been very hard for him, let alone the children (line 4 and 5, page 11 of exhibit 20). The husband asserted that he had now moved on but he said things in his oral evidence that indicated that he may not have fully moved on from the level of grief that he felt at the time of the separation.
The husband was asked by counsel for the wife “do you think that if you actually went out and got a job and started working again full time, that would be being a good role model for your children?” The husband said “I think explaining to them that the most important job is the children, and you know, family is more important than anything. In regards to being a good role model, it’s teaching them what’s right and wrong, teaching them to be truthful, not to be some corporate, you know, putting the important things in, the essentials.” The husband was subsequently asked whether or not “some corporate” was a reference to either the wife or the role that the wife had within her employment. The husband asserted that it was not his intention for that to be a reference in any way to the wife. When pressed, he said that he did not intentionally use it as a reference to the wife. Clearly the only inference that can be drawn from what he actually originally said was that it was a reference to the wife and for the husband to assert otherwise was disingenuous.
The husband was unable to explain into what account his income from trailing commissions was deposited between the time the joint Commonwealth Bank account was shut down and those trailing incomes first started to appear in his individual account in September 2012.
The husband conceded that the parties had agreed that the child M needed therapy. Therapy was arranged with a therapist. The therapist wrote a letter. The husband perceived that there was information in the letter that was critical of him. The husband terminated therapy on the basis that he had formed the view that the therapist was biased against him. The husband tried to say that he terminated therapy because M had said that he didn’t like the therapist but that was not something that the husband had previously proffered as a reason why therapy had been terminated and I do not accept the husband was being frank about the central reason why M’s therapy was cancelled.
Conclusion on credit
On the whole I preferred the evidence given by the wife where it conflicts with the evidence given by the husband.
DETAILED CHRONOLOGY
The husband was born in 1970 and is currently 44 years of age.
The wife was born in 1970 and is currently 44 years of age.
The parties were married in 1994. At the date of the marriage the wife was employed as a graduate with a major bank and the husband was working in his family retail business.
In or about 1994 the wife commenced full time employment with X Financial Pty Limited (“X Company”), where she is still currently employed.
Between 1994 and 1998 the parties lived at the Suburb H property, owned by D Pty Ltd (the husband’s extended family company). The husband renovated this property.
In March 1998 the parties purchased the Suburb E property for $225,000. The wife says she provided the monies for the deposit. In July 1998 the parties borrowed a further amount from the Commonwealth Bank of Australia to improve the E property.
The husband took the year off in 1999 in order to obtain a vocational certificate. The wife asserts she paid for this course.
In November 1999 the wife and her sister purchased the Suburb K property for $260,000.
In 2000 the husband completed a number of financial services modules and became a financial services provider. He started a financial services business and operated this with a business partner until about 2010. The wife asserts that in 2001 she borrowed $20,000 as an unsecured personal loan to help establish the husband’s business. She paid that loan from her own income and the husband made no contribution.
In or about 2001 the loan facility over the Suburb E property was refinanced and a further amount of $95,972 was borrowed to support the husband’s business.
In July 2002 the wife and her sister purchased Unit 1, Suburb L for $640,000.
In April 2004 the wife asserts she borrowed a further $100,000 from the E property mortgage redraw account for the purposes of assisting the husband with his business. The wife made all the repayments. The wife contends that between April 2004 and 2007 the husband made several further withdrawals from that account. Between May 2004 and May 2005 the wife deposited about $167,000 into that account.
In or about 2005 the husband says he won $27,000 from gambling in Queensland while attending a conference with the wife. He used his winnings to buy a share in F Company, a funding company owned by the husband’s colleagues. In 2011 F Company was sold and the husband received dividends of $66,000. The husband says he used those funds to pay $10,000 to his brother to repay a loan and to pay off the wife’s credit cards. He also paid off a personal loan the wife had taken out for him. The husband gave the remaining monies to the wife to give to him on a graduated basis.
In 2005 the husband was charged with drug offences and pleaded guilty but I have no details about this and the husband was not questioned about it.
The parties’ first child M was born in 2006 and is currently eight years of age. The wife took five and a half months maternity leave following M’s birth.
In May 2006 the wife purchased the Perth property for $351,000.
The wife asserts that in October 2006 the husband started staying out all night and became very aggressive towards her.
In November 2006 the wife returned to work and the child M, who was then five months old, was placed in full time day care as both the parties were working.
From March 2007 until interim orders were made in 2012, the wife employed and paid for a number of au pairs. The au pairs lived in the household but worked shorter hours and did not do housework or cooking. From 2009 the wife employed a full time live in nanny who was responsible for most of the domestic duties and child care.
In April 2007 the parties leased the Suburb E property to one of the husband’s employees for a discounted rental rate. The wife says the husband requested the parties do this as he could not make the full super contribution for that employee. The wife agreed. At that time the parties moved in with Mr Y, at Suburb S. The parties resided with Mr Y until May 2008 (except for the period December 2007 to May 2008). The wife asserts she was solely responsible for cleaning, cooking, washing clothes and weekly shopping. The wife had the assistance of an au pair who cared for M.
In late 2007 M became ill and was originally diagnosed with meningitis. M spent four days at the Children’s Hospital and the wife stayed with him the entire time. She asserts the husband turned up occasionally. The husband denies this and says that he stayed at the hospital with Ml and the wife continued to work during this period. I accept the wife’s version.
In December 2007 the wife confronted the husband about having an affair and claims the husband admitted the affair and said he wanted to separate. The husband says that he had an argument with the wife and told her that he didn’t feel like he had a wife because she was never home. The husband moved out of the home on 2 December 2007 and the wife was solely responsible for M until March 2008 and did not have an au pair. The husband accepts he had an affair but says that affair ceased after three months.
In December 2007 the wife paid $6,000 to cover a balloon payment for the husband’s car.
In 2008 the wife paid $10,000 to Mr Y as a contribution for living with him at Suburb S.
In February 2008 the wife says the husband asked her to pay $20,000 towards some of his debts. At this time he promised to make changes to his life; stop taking drugs, smoking and gambling. The wife gave the husband $5,000 firstly and then a further $15,000.
On 8 March 2008 the parties reconciled and the husband returned to live with the wife at Suburb S. The wife asserts at this time the husband attended one session at Gamblers Anonymous and then said he no longer needed to attend.
In May 2008 the wife’s sister purchased Unit 3, Suburb L for $825,000. An equity stake of $100,000 was contributed by the wife. Also in May 2008 the wife purchased the Suburb KK property for $1,075,000.
In May 2008 the parties and Mr Y moved from G Street to premises at EE Street, Suburb S (“the S home”).
In September 2008 the Suburb E property was sold for $550,000. The wife asserts that as a result of the husband’s withdrawals the mortgage was $486,000 at the time of the sale.
The parties’ second child R was born in 2008 and is currently five years of age. The wife took six and a half months maternity leave following the birth of R and continued her role as homemaker. She also had the assistance of an au pair.
In late 2008 the wife says the husband asked her to borrow $15,000 as he owed money. The wife borrowed this amount and gave it to the husband. The husband denies this. I accept the wife’s version.
In 2010 the husband ceased operating his business and was employed by a demolition company. This involved both day and night shifts. At this time the wife paid $900 for the husband to complete his excavation course but he did not complete the exam.
In 2010 the husband suffered a cardiac arrest and was hospitalised for six days and then undertook rehabilitation for a period of six weeks as an outpatient.
Throughout March 2011 to January 2012 the husband was employed as Duty Manager at an entertainment venue. The husband worked 12 hour night shifts three days per week.
In 2011 the husband lost his license for driving under the influence of drugs.
On 19 August 2011 the husband underwent surgery and the wife paid for this procedure. Following his operation the husband was diagnosed with anxiety and depression and was prescribed anti-depressants. At this time the husband’s sister Ms A moved in with the parties and Mr Y. The wife asserts Ms A paid no rent and made little financial contribution to maintaining the household. The wife says she met all financial and non-financial obligations to the household without assistance from the husband or his family members who also resided at the property. The husband says that the nanny, the wife and he shared domestic duties in the home. He says that ultimately, because the wife was at work so often, it was the nanny and husband who performed most of the domestic functions. The husband also says that neither he nor the wife paid rent, mortgage or utilities.
In early 2012 the wife says the husband’s anxiety increased and he became lethargic, nauseous and was vomiting. He also paced in the middle of the night. The wife says the children were questioning the husband’s behaviour. The child M was five and a half years old at the time.
On 27 January 2012 the wife asserts the husband came home from work early and was worried about his blood pressure. He finally admitted to the wife he had been taking drugs. Later that month the husband lost his job at the entertainment venue. The wife asserts she offered to pay the husband the money she paid the nanny to look after the children but the husband declined saying he was “not interested in being a hands on dad”. The husband denies that he was fired and asserts he resigned from this job. No evidence from any documents held by the husband’s employer was provided.
The wife approached the husband in February 2012 and told him she could not tolerate his behaviour any longer. The husband moved to his sister’s home in Suburb C. Throughout February and March 2012 the husband attended the S home to see the children once or twice per week. The wife said at this time the husband again appeared to be suffering mood swings, erratic behaviour and would become extremely abusive. The husband denies that he moved out of the home from February to June 2012. He says he spent some nights at family or friends’ homes. This statement does not sit comfortably with the husband’s statement at [42] of his trial affidavit which states, “this was when I moved to [Suburb C] for a short time”.
On 7 March 2012 the wife provided the husband with a list of issues apparent in their marriage. The list is set out in the wife’s affidavit in the following form:
· Smoking
· Erratic behaviour
· Pacing at night
· Not sleeping
· Always being downstairs on the computer and playing games
· Always sms’ing on the telephone
· Being disengaged from Wife and children.
· Never remembering anything we had to do
· Never carrying out any duties
· Lack of interest in the children
· Not getting out of bed to take [the children] to school
· Not saying no to drugs
· Not assisting around the house; and
· Not making any attempts to obtain employment.
In March 2012 the wife requested the husband see a psychiatrist. The husband obtained a referral and went to one appointment. Notes from that consultation are not in evidence.
The wife says in March 2012 the children also began expressing concern about the husband smoking.
On 2 May 2012 the wife says the husband had an argument with another father at M’s soccer training and came to the S home being irrational and banged his head on the shower wall screaming “I’m leaving and I’m not coming back”. The husband accepts he had an argument at the soccer training but denies the latter behaviour.
On 7 May 2012 the husband advised the wife that he had been diagnosed with a sexually transmitted disease (“STD”). The wife then underwent testing and it was confirmed that she also had contracted the STD and received immediate treatment.
On 6 June 2012 a family meeting occurred at the parties’ home. This is discussed below.
In early June 2012 the child M injured his eye at school. The husband asked his brother to attend the hospital and the wife immediately left work to attend. The husband did not make an appearance. The husband says that he was travelling from Suburb C and when he arrived at Suburb O (the hospital being at Suburb K) he telephoned the wife and she said she was leaving. The husband says the parties agreed to meet at their home (in Suburb K). In early June 2012 the husband returned to live at the S home.
On 15 June 2012 the wife asserts the husband admitted to having an audio recording of her telephone conversations. This is discussed further below.
On 29 June 2012 an incident occurred between the parties in relation to an argument over car keys where both parties allege violence. This incident is discussed in more detail below.
The parties separated on a final basis on 30 June 2012. The husband asserts that he did not see the children for two weeks following separation and did not know where they had gone. He says the wife did not tell him where she was going. The husband further says the wife kept the children out of school for a week following separation.
On 9 July 2012 the wife took M to see a doctor. The child R was also present. The husband attended the reception area at the doctor’s surgery and the wife asserts he caused a scene, holding his mobile phone and pointing it at the wife. The wife reported this incident to the Police and took out an Application for an Apprehended Domestic Violence Order. The husband asserts in his affidavit that he felt it appropriate to record the dealings between he and the wife.
On 11 July 2012 the wife moved into a three bedroom villa.
On 13 July 2012 the wife and her brother in law encountered the husband’s Mr Y when dropping the children to the husband. They expressed their concerns at the husband’s recent angry and abusive behaviour. It is the wife’s evidence that Mr Y said to the wife “I love you, you are like my daughter. I want you to understand that I will protect you and look after you.” In regards to concerns about the husband’s behaviour Mr Y said to the wife “I will be with him, don’t worry”.
On 15 July 2012 the husband failed to return the children to the wife at 6.00 pm as agreed.
The wife says she learned from reading the husband’s affidavit of 27 July 2012 that the husband was considering starting a business as a handy man.
Interim parenting orders were made by her Honour Justice Rees on 31 July 2012 providing that the parents have equal shared parental responsibility, the children live with the wife each week from Friday after school until 7.30 pm Sunday and at all other times with the husband.
After a hearing on 16 August 2012 at the Local Court, a Magistrate dismissed the wife’s application for an AVO .
On 22 August 2012 the wife organised for M to attend counselling to cope with the separation. Initially both the parties attended with M to his counsellor Ms T but, as discussed above, in October 2012 the husband no longer agreed to M continuing with the counselling so the wife continued on her own with Ms T until March 2013. The wife paid all associated fees.
The wife and her sister purchased the Suburb LL property in September 2012 for $1,305,000. The wife currently resides in this property.
In October 2012 the Perth property was sold at a loss.
The wife says in January 2013 her friends Ms W, Mr Z, Ms I and Ms N all observed the husband working in Suburb FF. All but Ms W gave evidence in this hearing.
On 8 February 2014 the wife attended a parent helper’s course at M’s school. She says the husband arrived on a Harley Davidson and the children arrived later with the husband’s sister.
On 12 February 2013 the wife attended a one on one meeting with M’s teacher. The husband did not make an appointment to also meet with M’s teacher.
In February 2013 M was placed in an extension class for reading.
Between February 2013 and March 2013 the wife completed the Keeping Kids in Mind Course as a result of a suggestion by the family consultant.
In March 2013 the wife deposited her employment bonus of $60,000 into an MLC education fund for the children. Also at this time the wife sold some X shares for about $60,000 and repaid $15,000 to her brother, $10,000 in land tax and $12,000 towards credit cards. The wife says she has $23,000 remaining.
The wife and her sister purchased Unit 2, Suburb L in April 2013 for $875,000. The wife says that the purchase was financed by a mortgage of 85 percent of the purchase price and the balance together with stamp duty and associated costs was paid by the wife’s sister.
On 24 July 2013 the wife became aware of a Writ of Possession in relation to the S home. She then requested details of proposed future living arrangements for the children from the husband’s solicitors.
I made interim orders on 30 July 2013 as follows:
102.1.The interim parenting orders sought by the husband in his Amended Application in a Case filed 23 April 2013 be dismissed.
102.2.On my own motion, this matter be expedited.
102.3.By way of interim property settlement, within 28 days the wife pay the husband the sum of $86,099.
102.4.Pending further order, the wife pay to the husband the sum of $197 per week by way of periodic spousal maintenance.
102.5.Within 28 days, the wife pay the husband $40,000 for the purpose of him being able to acquire a motor vehicle. If the husband acquires a motor vehicle for less than $40,000, then the husband is to refund the difference to the wife.
102.6.The parties are to forthwith do all things and sign all necessary documents to sell the Harley Davidson motor cycle and the proceeds of that sale be paid to the wife but order 5 is not dependent upon the implementation of this order.
102.7.The wife continue to pay regular amounts in relation to registration and insurance on the husband’s motor vehicle and private health insurance for the husband.
102.8.The non-periodic child support order sought by the husband in his Amended Application in a Case filed 23 April 2013 be stood over generally save for Order 9.
102.8.1.In the event the wife ceases to pay:
102.8.2.M’s school fees; or
102.8.3.R’s day care fees; or
102.8.4.private health insurance for both children
the husband has liberty on 7 days notice to relist the matter for consideration of any application by him for an order that she do so.
On 7 August 2013 the wife commenced paying spousal maintenance of $197.00 per week to the husband. The wife also provided to the husband’s lawyers a cheque for $128,099.99 for payment of the husband’s legal fees, and for the purchase of a motor vehicle.
On 24 September 2013 the husband informed the wife that he and the children were relocating to a rental premises in Suburb BB. In October 2013 the husband and children moved to BB with Mr Y and Ms A and her partner.
The wife sold the Suburb KK property on 20 November 2013.
On or about 29 or 30 March 2014 the husband’s sister and her partner moved out of the BB property and into their own home. From that time the normal members of the children’s household when they are with the husband have been the husband and Mr Y.
On 11 April 2014 the wife says the child R asked the wife to come into the husband’s home during a changeover. The wife says she observed the home to be very untidy.
EVIDENCE FROM WITNESSES
The family consultant
The family consultant observed during interviews with the maternal family that the maternal family group perceive the husband as unlikely to adequately parent the children, particularly in practical terms, after the paternal aunt moves out (which she has now done). The maternal family also expressed the view that the husband has no interest in ensuring that the children attend their normal weekend activities.
The family consultant found that the communication between the paternal family group was such that it is likely that the husband, his sister and Mr Y have a co-operative approach to issues within their household with no one person seeming to be the spokesperson. She notes the paternal family all made positive comments about the wife and the extended maternal family and that it was evident to her that the paternal family values the wife’s role as the children’s mother and as a continuing part of their extended family.
During interviews for the family report, both the parties were interviewed together and agreed that they each want the children to spend substantial and significant time with the other parent but were at a loss as to how to achieve this at that stage.
The family consultant notes that the wife provided her with the most detailed information in relation to the children’s personalities, academic and sporting interests.
The family consultant states that the children seem settled in the current arrangement, although both of them would benefit from spending some weekend and holiday periods with their father.
The family consultant recommended that in terms of school holidays, the children ought return to the care of the parent they will be with for the commencement of each term, at least three days prior to the commencement of school.
The family consultant also recommended that the parties consider approaching a community based agency or appropriate professional in private practice so that they can seek assistance, when necessary, with developing better communication strategies and reassessing the parenting arrangements to take account of any major changes in either parent’s living arrangements or working commitments and also to ensure that the parenting arrangements are developmentally appropriate for each child.
The wife’s sister, Ms V
Ms V is the older sister of the wife. Ms V gave evidence in a very straightforward manner. Her evidence was not impugned during cross examination. Ms V corroborated the wife’s evidence in relation to the wife’s parenting application. Ms V has a management position in a company that provides property management services. She is the licensee of that company. She gave evidence that she has considerable flexibility in terms of her working hours. She confirmed that she or her husband would be available to transport the children from their school to Suburb LL on Monday, Tuesday, Wednesday and Thursday afternoons if the wife was unable to do those trips (the wife indicated that most of the time she wouldn’t be doing those trips but rather she would be doing the morning trips). Ms V also indicated she had flexibility to fill in in the morning if the wife needed that assistance.
Ms V gives evidence that she and the wife would often be responsible for the care of their younger brothers and their mother.
Ms V suggests that she has a cordial relationship with the paternal family but that the husband has been aloof and on one occasion threatened her in the presence of the children. She also addresses concern with the husband’s behaviour regarding the children, particularly in respect of photos he had taken of an inappropriate nature and posted online (for example of the child M in a strip club (as discussed below)).
Ms V has a close relationship with the children and is the godmother of the child R. She gives evidence that during the time the parties were together, she witnessed the wife primarily caring for the children with the assistance of nannies.
The wife and her sister have purchased several investment properties together. The first property they purchased was as a home for their mother in Suburb K in 1998. The deposit came from the sale of the maternal grandmother’s former home and the wife and Ms V borrowed the balance of the sale price. The wife’s brothers, Mr JJ and Mr PJ also make contributions to the property.
Ms V provides corroborative evidence of the joint property acquisitions with the wife.
The wife and her sister have shares in publicly listed companies together. Ms V asserts she wanted to assist the wife to re-assert her financial independence and help her accumulate assets for the benefit of the children.
Ms V enjoys a close and loving relationship with the children and has much involvement in their lives by way of taking them to extra-curricular activities and enjoying outings with them on weekends and school holidays. The wife and children have also spent holidays away with Ms V and her family.
Ms V says the wife and she purchased the LL property so that the wife and children can be closer to Ms V and her family as Mr V is semi-retired and has the flexibility to assist the wife as required. The wife’s sister does not work on Fridays and has the ability to adjust her work schedule to assist the wife when required.
The wife’s mother, Ms J
The wife’s mother gives written evidence of her observations of the parties during the marriage. She was not called to give oral evidence. Ms J says that the husband did not help the wife very much and the wife did most of the cooking and housekeeping.
It is Ms J’s evidence that the only time the husband began asserting he wanted to stay home with the children was after he and the wife separated.
Ms J contends that a family meeting took place at her home on 6 June 2012 where the husband told everyone in attendance that he wanted the wife to have whatever she wanted. He then got very angry and started yelling abuse and using very bad language.
The wife’s brother, Mr PJ
Mr PJ is the youngest brother of the wife. He was not called by the husband to give oral evidence. He resided with the parties for one year between April 1998 and November 1999. During that time he says he often heard the wife encourage the husband to undertake further studies.
Mr PJ and his family enjoy a close and loving relationship with the wife and children. The children get along well with their cousins.
Mr PJ says the wife was a full time mother when on maternity leave and ran the household; cooking, cleaning and caring for the children. Mr PJ has observed the wife to be very accommodating, caring and loving toward the children. In contrast, Mr PJ says that prior to the separation, the husband was not a hands-on parent and relied on the wife to carry out responsibilities.
Mr Z, Ms I and Ms N
Mr Z, Ms I and Ms N all provide similar written evidence that on separate dates in January 2013 they observed the husband in Suburb FF working as a tradesman in that suburb. They each attach photos of the husband to their affidavits. The husband conceded that he worked as a foreman for his brother for three weeks in January 2013 but not as a tradesman.
The husband’s sister, Ms A
Ms A provides evidence that throughout the marriage between the parties she developed a close friendship with the wife and considered her as a sister. Since March 2014, there has been a falling out between the husband and Ms A, which Ms A explained in oral evidence. The husband did not behave well when he ordered his sister and her partner out of his residence.
Ms A moved in with the parties and children in July 2011. At that time both Ms A and the husband had undergone similar surgeries and were supporting each other through the process. Ms A resided in the home with the husband and children until the end of March 2014.
In 2011 the husband’s sister was working from home three days per week and in the office the other two days. In September 2013 she recommenced at the office on a full time basis.
During the time Ms A lived with the family she observed the children to be cared for by the husband with the assistance of a nanny. The husband was also responsible for transporting the children to and from school or day care, and Ms A would collect the child R from day care on the way home from work as she parked her car near the day care centre.
The husband’s sister contends that the wife would on most days get home at about 8.00 pm and on most mornings would leave home by the time the children woke up. She says there were occasions when the children did not see their mother for days. She was tested about this in cross examination and I accept her evidence about that.
Since July 2012 Ms A asserts the husband has “taken more or less full responsibility for [the children]”. Ms A has had some involvement in the daily routine of the children; she would make dinner for everyone in the household but by September 2013 as she was working full time the husband took on more of the cooking.
The husband’s uncle, Mr Y
Mr Y is the uncle of the husband and has been a member of the children’s household since M was 10 months old, and all of R’s life. He is 65 years old and suffers from ill-heath and is on the waiting list for a heart transplant. In 2006 the parties moved in with Mr Y to provide him with support and company. The wife had just returned to work following maternity leave and hired a nanny. Mr Y asserts the wife would leave home for work around 7-7.30am and arrive home from work around 7-7.30pm. The husband was also working long hours at his former business.
In 2008 Mr Y sold his home and he and the family moved into an investment property owned by one of the family companies in Suburb S.
Mr Y says the husband would transport M to and from day care most mornings and pick him up in the afternoons. In 2008 the husband began working from home and would spend time with M during the day. Mr Y asserts that after the wife finished her maternity leave following R’s birth the nanny looked after R. The husband would assist. The wife did the grocery shopping on weekends and both parents played with the children on weekends.
When the husband was recovering from his heart attack in 2010, Mr Y says he did not do much and was not allowed to drive. Once he recovered, the husband resumed transporting the children to and from day care and school and he also started to do chores around the house. The nanny did most of the chores. When Ms A moved into the home in July 2011, she also assisted with the children’s daily routines.
Mr NS
Mr NS provides written evidence about the husband’s involvement on the construction site at Suburb FF. He says he obtained the husband’s assistance following a suggestion by his family (because Mr NS’s daughter had been ill at home over several years and he himself had also been unwell). The husband worked on the site on and off throughout January 2013 depending on when he had the children.
Mr HK (deceased)
Mr HK was the president of the Football Club and had known the husband through his association with the football club as a parenting coach and volunteer. He contended to have observed the husband displaying a commitment to his son and has observed that the husband is respected by the players and parents alike.
Mr HK was aware from conversations with the husband that the husband stayed home to look after the children with some assistance from a nanny.
Ms Q
Ms Q is the director of a child care centre that the child M attended when he was younger.
Ms Q asserts she does not recall meeting the wife for a period of about twelve months from M’s enrolment (when he was a small baby). She says the husband delivered M each morning and collected him each night from the centre.
Ms Q asserts the wife had telephone communication with her which included times when the wife would call at 10.00pm saying she was driving home from work. Following the child R’s birth Ms Q says she had more contact with the wife.
Ms Q contends that the saw a lot more of the husband than the wife over the six years she had an involvement with the family. Ms Q observed the husband to be the main carer together with the assistance of a nanny.
Ms Q had observed the children to be well adjusted who play well with each other and other children and were always immaculately presented
Ms Q further states that she has observed in her conversations with the husband that he always puts the children before himself and from her observations he has a close and loving relationship with the children.
Ms ST
Ms ST is the husband’s osteopath and provided a letter on 22 November 2012, annexed to her affidavit regarding the husband’s ill health. She provides that the husband has a history of back pain and findings on a CT showed that the husband should avoid lifting heavy objects and should adopt a safe lifting technique when lifting moderately heavy objects and when having to perform physical work. He should also take regular breaks in order to avoid exacerbation of his current condition and current pain.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Act are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
That neither parent remove the children from the Sydney metropolitan area without giving the other parent 60 days prior written notice of intention to take the said children away from the said area.That neither party shall denigrate the other in the presence or hearing of the children.
That the Respondent be restrained from smoking in or near the presence of the children, and he shall ensure that no other person in his household smokes in or near the presence of the children.
That the respondent be restrained from using illicit substances whilst the children are in his care and he shall continue his urine testing on a weekly basis up until 31 December 2018 at … or any other Pathology in its place where chain of custody applies, and all testing costs shall continue to be paid by the Applicant.That the Respondent shall provide to the Applicant copies for each urine testing results immediately following receipt of same by him, and he shall also direct … to provide copies of the results of the said tests to the Applicant.That the respondent shall ensure that whilst the children are in his care that he have with him at all times an adult family member or a person of good character over the age of 18 years who is cognisant of the development needs and protecting of the children, and the Respondent shall ensure that that adult family member shall be a person who does not use illicit substances.Each of the Applicant and the Respondent shall speak to the other in a respectful and polite manner and shall not denigrate the other party or nay person they are in a relationship with in the presence and or hearing of the children, and both parties are to use their best endeavours to ensure that no third party denigrates the other party or nay person they are in a relationship with in the presence or hearing of the children.
That the parties are permitted to take the children out of the Commonwealth of Australia, provided that parent shall give written notice to the other parent at least six (6) weeks prior to the intended travel specifying the date and time of departure, the means of transport and all details pertaining to the travel including details of the airline, with whom the children will be travelling, intended destination, contact numbers and addresses for the children for the duration of the trip and the intended date and time of return.
That upon written notice being given by a parent pursuant to the previous paragraph the other parent shall within seven (7) days from the date of receipt of the said notice, advise the other parent if he/she will or will not sign documents so as to enable the children’s passports to be processed and made available to the travelling parent including, if relevant, provide to the other parent notice as to whether or not he or she will consent to signing all necessary passport applications and consent forms and providing the children’s birth certificate and any other associated documents required.
Neither party shall be permitted to take the children to a country where there is High Degree of Caution or higher DEFAT travel warning or subject to Hague Convention countries not including United States of America without the express consent of the other parent.
Costs
That the Respondent shall pay the Applicant’s costs.
Orders sought by husband
Property settlement:
That within 7 days of the date hereof the wife do all acts and things and execute all documents necessary to transfer her right title and interest in the Harley Davidson … motor cycle registered number … and deliver the same to him.
That the wife be declared the sole and beneficial owner of the 3.1 karat diamond ring set in white gold.
That within 30 days of the date hereof the wife pay to the husband the sum of $1,400,000.00 by way of adjustment of property.
Declare that otherwise each party is the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.
Spouse maintenance:
That the wife pay to the husband the sum of $1,000.00 per week by way of spouse maintenance, first payment within 7 days to the husband’s Westpac Bank account BSB … account number ….
Parenting orders:
That the parties have equal shared parental responsibility for the children [M] born … 2006 and [R] born … 2008 (“the children”).
That during the school term, the children shall live with the mother from the conclusion of school on Friday until 7pm on Sunday for three out of four weekends and on the fourth weekend in every four weekends the children shall be returned to the Husband at midday on the Saturday.
That the mother collect the children from school each Wednesday during the school term, and the children shall spend time with her until 7pm that day, or as otherwise agreed between the parties.
That the children shall live with the father at all other times during the school term.
That in the event the mother is unable to collect the children from school and personally care for them, then by no later than 7pm on the proceeding day she shall notify the father of the time she intends collecting the children, and she shall collect the children from the father’s residence by not later than 7.30pm on that day.
That the mother shall return the children to the father’s residence at the conclusion of her time.
That during each of the school term holidays, the children shall spend the first nine nights with the mother and the remainder of each holiday with the father following changeover which shall occur at 7.00pm.
That during the summer school holidays, the children shall live with the father and mother on a week-about basis as follows:
a.in odd numbered years, the mother shall collect the children from school at the conclusion of the term, and they shall live with her for seven nights and alternating weeks thereafter;
b.in even numbered years, the father shall collect the children from school at the conclusion of the term, and they shall live with him for seven nights and alternating weeks thereafter;
c.changeovers shall occur at 7.00p.m.
d.such other arrangements as the parties may agree in writing from time to time, including extended periods with either parent.
That notwithstanding any other paragraph of these orders, the children shall spend time on special occasions with the father and mother as follows:-
(a)on the children’s birthdays, for a period of three hours with the parent with whom the children are not living;
(b)on the father and mother’s birthday, if not already falling on time spent with the father and mother respectively, then for a period of three hours at times for be agreed;
(c)on Father’s day and Mother’s day with the father and mother respectively, from 6.00pm on the Saturday of that weekend until the commencement of school on Monday;
(d)with the father from 6pm on 24 December until 4pm on Christmas day and with the mother from 4pm Christmas day until 6pm on Boxing day;
(e)with the father from 6pm on Easter Saturday until 4pm on Easter Sunday and with the mother from 4pm on Easter Sunday until 6pm Easter Monday;
(f)as may otherwise be agreed between the mother and father from time to time.
That the children’s time with the mother during the school term holidays and summer holidays shall be conditional upon the mother’s availability to personally care for them outside of her employment, otherwise the children shall live with the father.
That in the event either parent intends to travel with the children on a holiday, they shall first provide to the other parent an itinerary including dates, accommodation and contact details, no later than seven days prior to the holiday.
That there be liberal telephone communication between the parents and the children.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Costs
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