WEBSTER & WEBSTER

[2017] FamCA 202

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER [2017] FamCA 202

FAMILY LAW – INTERLOCUTORY – CHILDREN – With whom the children should live – Where the children lived with the mother for nearly two years following separation, but the father then detained the eldest child – Where the father believed the mother impairs the children’s relationships with him, but they maintain close and loving relationships with him – Where, despite the father retaining the eldest child in his care, the mother continues to ensure the youngest child spends time with the father and her sibling – Where the children’s residence with the mother will likely enable the children to maintain healthy and meaningful relationships with both parents – Decided the eldest child’s best interests are promoted by an order that she live with the mother – Ordered both children live with the mother and spend “substantial and significant time” with the father

FAMILY LAW – INTERLOCUTORY – PROPERTY – Interim distribution – Where the mother seeks a capital gains tax debt be paid from a controlled monies account – Where the father proposed a final property settlement order providing for the funds in the controlled monies account to discharge the mother’s capital gains tax liability – Ordered the capital gains tax liability be paid out of the controlled monies account

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Family Law Rules 2004 (Cth), rr 5.09, 9.08

Banks & Banks (2015) FamCAFC 36
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Webster

RESPONDENT: Mr Webster

INDEPENDENT CHILDREN’S LAWYER: No Appearance

FILE NUMBER: SYC 5182 of 2015

DATE DELIVERED: 20 March 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 20 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr J. Bunning

SOLICITOR FOR THE RESPONDENT: Simonidis Steel Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

Orders

1. Pursuant to s 62G of the Family Law Act, a Family Consultant shall prepare and furnish to the Court a family report concerning the children of the parties touching upon those matters of relevance to the care, welfare, and development of the children.

2. In order to facilitate preparation of the family report:

   a.Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

   b.Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

c.The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

1. The parties’ respective applications pursuant to Parts VII and VIII of the Family Law Act are adjourned until 10.00am on Friday, 2 June 2017 for further procedural directions.

2. Leave is granted to the parties and/or their legal representatives to appear by telephone at the next Court event.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

1. The parties shall forthwith do all acts and things necessary to cause D Lawyers to pay the sum of $99,541.10 to the Australian Taxation Office from the controlled monies account held in the parties’ names in satisfaction of the 2016 Notice of Assessment issued to the mother.

2. All former orders made in respect of the following children (“the children”) under Part VII of the Family Law Act are discharged:

   a.B, born … 2004

   b.C, born … 2006

3. The mother shall have sole parental responsibility for the children.

4. The children shall live with the Mother.

1. The parties shall take all reasonable steps to ensure that the children spend time with the father as follows:

a.During school terms, each alternate week from the conclusion of school on Thursday until the commencement of school the following Monday, commencing on Thursday 30 March 2017 and thereafter on the first Thursday of each new school term;

b.For the first half of the Autumn, Winter and Spring school holiday periods.

1. For the purposes of implementation of the preceding order, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the school holidays are deemed to end at the commencement of school on the first day of the new school term, and the mid-point is noon on the day halfway between those first and last days.

2. For the purposes of implementing these orders the parties shall respectively ensure the children’s:

   a.Collection from school whenever the children’s residence or expenditure of time with the party is to commence at or about the conclusion of school during school term;

   b.Return to school whenever the children’s residence or expenditure of time with the party is to conclude at or about the commencement of school during school term, and otherwise;

c.Collection from and return to the McDonalds Restaurant at Suburb H, NSW.

1. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   a.The father each Saturday at 6pm when the children are living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time; and

   b.The mother each Saturday at 6pm when the children are spending time with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

2. Each party is restrained, without the written consent of the other, from removing and/or causing or allowing, by their agents or otherwise, the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all of points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on that watch list until 31 December 2017.

3. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

1. The mother shall authorise and request the principals of any school attended by the children to provide to the father, at his expense, copies of the school reports and school photograph order forms relating to the children.

2. Each party shall forthwith inform the other, and keep the other informed in writing, of their respective current residential address, mobile telephone number and email address.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

2. Save as to costs, otherwise:

   a.The Amended Application in a Case filed on 17 March 2017 is dismissed;

   b.The Response to an Application in a Case filed on 15 March 2017 is dismissed; and

c.Any and all other outstanding applications for interim orders are dismissed.

1. No order as to costs.

NOTATIONS

A.The parties will be independently notified of the date and times of their appointments with the Family Consultant, which are presently expected to take place on or about 17 May 2017 in the Newcastle Registry of the Family Court of Australia.

B.The parties acknowledge that an Apprehended Violence Order currently protects the mother from the father, but these orders are not inconsistent with the terms of that Apprehended Violence Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Webster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 5182 of 2015

Ms Webster

Applicant

And

Mr Webster

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

Ex-Tempore

REASONS FOR JUDGMENT

1. The parties are presently engaged in dispute over orders pursuant to both Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. Today, the Court entertains another interim dispute between them over their children and their financial affairs. I will address both aspects of their dispute separately.

Evidence

1. The father prosecuted his application by reliance upon his affidavit filed on 9 March 2017. 

2. The father sought to also rely upon his affidavit filed on 17 March 2017, but was not permitted to do so because of his inability to demonstrate either the need for or desirability of waiver of Rules 5.09(a) and 9.08(3) of the Family Law Rules 2004 (Cth). There was no good reason for the father to rely upon a second affidavit, particularly when it was only served on the mother, who was a self-represented litigant, on the afternoon of the last business day prior to the date fixed for interim hearing.

3. The mother relied upon her affidavit filed on 9 March 2017. 

Parenting orders 

Issues

1. Neither party sought any order allocating parental responsibility for the children and, when that lacuna in their applications was raised, both confirmed they sought an order for sole parental responsibility in respect of both children.  They each envisaged the designated residential parent would have exclusive parental responsibility for the child or children who lives with them.

2. The parties agreed their underlying dispute about the children's school enrolments would abide the allocation of parental responsibility and so it was unnecessary to separately address that issue. 

3. The dispute between the parties therefore devolved to the children's residence.  The mother wanted both children to live with her, as was the case until about three weeks ago. The father wanted both children to live with him. Presently, the eldest child (who is 13 years of age) lives with the father and the youngest child (who is about to turn 11 years of age) lives with the mother.

4. The mother wants the children to continue spending substantial and significant time with the father, as prior interim orders provided, but the father's position was unclear. The eldest child has lived with him for the last three weeks and has not seen or spoken with the mother in that time. He asked the Court to make the orders it considered appropriate about the children's future interaction with the mother because he could not formulate a specific proposal himself.

History

1. This dispute arose quite recently.

2. Interim parenting orders were made between the parties on 30 November 2015. On that occasion, in essence, the parties were allocated equal shared parental responsibility for the children, the children were ordered to live with the mother, and the children were ordered to spend substantial and significant time with the father. There was no appeal from those orders. 

3. Not so long afterwards, on 19 January 2016, more orders were made with the parties' consent. Those orders amended the orders previously made in November 2015 in one respect; by rejigging the amount of time the children should spend with the father. The parental regime became one under which the children would spend time with the father from the conclusion of school on Thursday until the commencement of school on Monday each alternate week. 

4. Those orders prevailed for the next 13 months, apparently relatively uneventfully, until February 2017. On or about 22 February 2017, the father was arrested and remanded in custody overnight in relation to an alleged breach of an Apprehended Violence Order, which protects the mother from him. 

5. Although released from custody on or about 23 February 2017, in the following days the parental regime between the parties became unsettled, at least insofar as it concerned the eldest child. Although the circumstances under which it occurred remain contentious, it is common ground that the eldest child moved into the father’s care on the afternoon of 28 February 2017 and has remained in his care ever since. That situation conflicts with the existing interim parenting orders and also with the parties' current proposals in respect of the children. 

Legal Principles 

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be rendered inapplicable or rebutted by the evidence. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

5. The procedure for conducting an interim hearing in respect of parenting orders has been authoritatively established by the Full Court.  In Goode & Goode (2006) FLC 93-286, the Full Court said:

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. 

6. In Banks & Banks (2015) FamCAFC 36 at [47]-[50], the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.

Section 60CC(2)(a)

1. The meaningfulness of the children's relationships with the parties and the benefit derived by them from such relationships was not the subject of any submission by either party. It is implicit that, at least until three weeks ago, both parties accepted the children had meaningful relationships with both of them. So much should be obvious from their substantial involvement in the children's lives since their separation about two years ago. The orders made between the parties in November 2015 and January 2016 recognise that reality. 

2. The father clearly believes the eldest child's relationship with the mother has now fallen into disrepair, but his honest belief is not objective proof of the fact.  The mother has always been the primary carer for both children, at least until the eldest child went to live with the father some weeks ago. It beggars belief the eldest child does not now, and would not continue to, derive enormous benefit from her relationship with the mother. 

3. The issue engaged under s 60CC(2)(a) of the Act is whether the eldest child's relationship with the mother will be destroyed, or at least impaired, by her continuing residence with the father. The father deposed the eldest child is fearful of the mother, which presumably explains why he has been unable or unwilling to use his parental influence over her to persuade her to maintain contact with the mother. Given he genuinely believes some harm may come to the eldest child through her interaction with the mother, one could have little confidence in any restoration of the eldest child’s relationship with the mother in the near future, if she remains in his care. Moreover, if the youngest child moves to live with the father, the same sentiment will likely apply, because the father deposed to both children being genuinely fearful of the mother.

4. Of course, vindication of the father's beliefs about the children's predicament hinges on the reasons for their asserted fear of the mother and that evidence is relevant to considerations under both ss 60CC(2)(b) and 60CC(3).

Section 60CC(2)(b)

1. There was no evidence adduced to engage s 60CC(2)(b) of the Act in respect of any harm to the children due to "neglect" or "family violence".

2. The father deposed to his "serious concern" about the children's "emotional and psychological wellbeing", which evidence had the potential to imply their "abuse" by the mother (within the meaning of the Act), but the father disavowed that imputation during submissions. His counsel asserted the children's fear of the mother was due to her "overbearing" nature and her "stymying" of the children's relationships with him – nothing more. Neither of those contentions invoked s 60CC(2)(b) and will therefore be addressed under s 60CC(3) of the Act.

3. No evidence adduced before the Court provided any foundation to conclude that either child is at tangible risk of either physical or psychological harm due to their subjection or exposure to abuse, neglect, or family violence.

Section 60CC(3)

1. The father's principal grievance was his belief the mother either deliberately or inadvertently conducts herself in a way that tends to impair the children's relationships with him. Presently, the evidence does not objectively support his belief for a number of relatively obvious reasons. 

2. First, and most importantly, the children have close and loving relationships with him. They have lived with the mother for nearly two years since the parties' separation and their relationships with him over that period have not deteriorated. In fact, they have flourished.

3. Second, the mother's conduct speaks louder than her words. Even though the father has detained the eldest child for three weeks in breach of existing interim orders, the mother ensures that the youngest child continues to spend time with the father and her sibling, as required by those existing orders. That occurred last weekend. The mother has not reacted to the father's contravention of the orders in a spiteful and retaliatory way, suggesting she apparently understands the importance of both children continuing to maintain their valuable relationships with both parents. 

1. Third, the father's conclusions about the mother's turpitude or lack of insight depend upon his acceptance of the literal truth of representations made to him by the eldest child about the mother. It is dangerous for him to do so because the children are conscious of the deeply entrenched enmity between the parties. It could be the eldest child has said things to both parents in the past, either favourable to them or critical of the other, as a way of demonstrating allegiance with the parent in whose company she then is. The history of uncontentious facts is the most persuasive evidence, prior to proper evaluation of the conflicting evidence at final trial, just as the Full Court in Goode & Goode observed. Evidence of statements made by a child to only one parent is liable to be unreliable evidence.

2. As already indicated, orders were made between the parties in November 2015 and January 2016, which orders invested them with equal shared parental responsibility for the children and provided for the children to live with the mother. That parental regime operated satisfactorily for 13 months until 28 February 2017. The evidence about the incident that occurred that day, rupturing the existing regime, warrants closer scrutiny. 

3. Given the father's remand in custody overnight several days beforehand, his solicitors sent an email to the mother requesting her confirmation that she would continue to comply with the existing parenting orders made in January 2016. The mother intended to do so. She sent a text message to the father at 11.05 am on Tuesday 28 February 2017 saying:

   I propose to keep contact [between them] to a minimum.  We stick to the orders [sic].  The children will be ready to come to you this Thursday after school till Monday morning.  Please do not confuse them or upset them by arranging anything else...

4. As the mother deposed in her affidavit, she has always complied with the orders and facilitated the children's visits with the father, and she was not contradicted. 

5. Notwithstanding the mother's written confirmation to the father that she would comply with the existing orders and the children would pass into his care two days later on Thursday 2 March 2017, in accordance with those orders, the father’s disaffection continued to develop.

6. The father deposed that at about 1.00 pm he received a telephone call from the eldest child, who was then at school. She enquired of him when she would see him next and asked him whether he would collect her from school at 5.00 pm that day. I pause at this juncture to record that the existing orders did not provide for the eldest child to move into the father's care that day so, regardless of whether she expressed a wish to live with him, the obvious answer for him to have given her was that the orders required her to live with her mother and he would see her two days later. Regrettably, that did not ensue.

7. Because the father decided the eldest child was "noticeably upset on the telephone" and he was "shocked" by the eldest child's telephone call and her emotional state, he decided he would accede to her request to go to the school and collect her.

8. It would seem that, after the telephone call at about 1.00 pm between the father and the eldest child, the eldest child spoke with the mother at about 4.00 pm.  She informed the mother she had made arrangements for the father to pick her up and the mother told her she did not believe that was a good idea, as she had no clothes. The eldest child asked the mother if the father was still in trouble with the police, which inferentially indicates she had knowledge of the police involvement with the father some days beforehand, and the mother deposed she replied to the child "Yes, so it's best if you just come home and see him on Thursday".

9. According to the evidence adduced by the father, at about 4.00 pm, presumably momentarily after the eldest child's telephone call with the mother, the eldest child again telephoned him. The eldest child reported to him that the mother had told her "She was not to have any contact with [him]". The eldest child may indeed have said that to the father but, given the mother’s evidence, it would not be an accurate representation of the conversation she had with the mother momentarily beforehand.

10. In any event, the father collected the eldest child from a designated location later that afternoon and took her home. The father deposed the eldest child told him she was "terrified" of the mother. I take the father at his word, but I have some difficulty accepting that, as an insightful parent, he would honestly believe the eldest child would indeed be terrified of the mother, with whom she had lived for her whole life. There was no evidence adduced to rationally explain why the eldest child would be terrified of the mother.

11. The mother deposed in her affidavit as to how the father's collection of the child that Tuesday afternoon was in direct contravention of the existing orders.  So much is obvious and has not been the subject of contest by the father. The mother deposed she has not been allowed to see or speak with the child since that afternoon and, again, that is common ground. She was not contradicted. As at 28 February 2017, the eldest child was attending a school at Suburb I, but the child was not apparently returned to that school by the father thereafter. 

12. The ruction with the eldest child had the potential to spill over and affect the youngest child. The mother deposed that on the same afternoon (28 February 2017) she had a telephone conversation with one of the children's grandparents.  The grandparent reported to her "[The father] is on the phone to [the youngest child]. She wants to talk to you". The youngest child was then handed the telephone by the grandparent and she said to the mother "Mummy, daddy's telling me to go downstairs in 15 minutes otherwise the police will come to pick me up. I don't want to go. What should I say. Can I hang up". The mother said she instructed the youngest child she was free to do so, which apparently then happened. The youngest child then returned to the mother's care. I impute from the available evidence, which is not the subject of contest, that following the father's collection of the eldest child he unilaterally endeavoured to also take the youngest child into his care.

13. There is an inference readily available that the current dispute between the parties is the manifestation of a more specific disagreement between them over at least the eldest child’s school enrolment. 

14. The father deposed that, on 2 March 2017, his solicitors sent the mother an email outlining his concerns for the children in her care and advising her he would not be facilitating the eldest child's attendance at her school until such time as the mother provided an undertaking that she would not remove the eldest child from his care or her school until further order of the Court or written agreement between them.

15. The mother deposed that the issue of the eldest child's school enrolment has been an issue of simmering resentment between the parties. She deposed that on 19 February 2017 – that is about a week-and-a-half before the incident that led to this current dispute – the eldest child approached her at the dinner table asking to attend a different school. When the mother inquired about her interest in it, the eldest child informed her that it was a school the father wanted her to attend.

16. On the same day, the mother was copied into an email the father sent directly to the eldest child, which said, in part:

    I have informed [Ms Webster] that I want you to enrol in [J School] for the start of term 2.  Can you please ask her nicely to sign the form and return it to me by email before Wednesday.  Dad xx. 

17. Pausing for one moment to observe the father referred in his conversation with the eldest child to the mother by her Christian name, rather than by the appellation "Mum", which is reason for concern in itself, the fact the father would raise an issue of parental responsibility directly with the eldest child and not with the mother is a clear sign of the father's lack of parental understanding.

18. On the same date, the father wrote to the mother informing her he would be seeking a Court order compelling her to sign the enrolment form for the eldest child's attendance at the J School and would seek orders for the enrolment fees for the first year (amounting to nearly $30,000) to be paid from the parties' joint funds. The mother did not accede to the father's demands.

19. After the father detained the eldest child in his care on 28 February 2017, there was further written communication between the eldest child and the mother, a prominent feature of which was the issue of her school enrolment. For example, the eldest child has written to the mother in different messages:

    If you loved me, you would let me go to [J School].  Dad is paying for everything so you don't need to get involved.  All you need to do is sign the form and then I can speak to you. 

    Please sign the [J School] forms.  You won't even have to get involved.  Dad is paying all the costs, all you need to do is sign the forms and we can talk.

    If you really love me, you would want me to be happy and the only way I can be happy is by going to [J School]. 

    If you mean all this, why won't you let me achieve my dream which is going to [J School] and receiving a classical and well-rounded education which every child should have.  I am lucky that Dad supports my dreams.

20. I accept the mother's submission to the effect that those text messages sent by the eldest child tend to demonstrate a degree of influence exerted by the father over her, at least in respect of her school enrolment, and she is being used as a pawn by the father to achieve his ends. The fact the eldest child seems to link the mother’s consent to her attendance at a school chosen by her and/or the father with her future willingness to communicate with the mother is a compelling consideration in the determination of this interim dispute.

21. Quite clearly, the eldest child has, by her conduct and written communication with the mother, inferentially expressed her view to remain living with the father. I am, however, not prepared to repose much weight in her view. The inference is readily available she feels constrained to react favourably to the father's attitudes.

22. The final consideration under s 60CC(3) of present relevance is the current separation of the siblings. Neither party thought that was a good idea. The father wanted both children to live with him, after some prevarication about whether it should only be the eldest child, and the mother wanted both children to live with her. I agree with both parties. In circumstances where there is open conflict between them, the sibling relationship between the two children should be consolidated. Their sibling relationships are likely to be the longest-lasting relationships they will experience in their lives. They are likely to garner some support from one another attempting to resist involvement in the conflict that exists between their two parents.

Conclusions and Orders

1. The parties both sought to invoke s 61DA(4) of the Act, accepting they are both currently unable to exercise equal shared parental responsibility for the children in the manner the law requires (s 65DAC). I am satisfied the evidence rebuts the presumption of equal shared parental responsibility and that one of the parties should have exclusive parental responsibility, at least on an interim basis, for the children. Self-evidently, parental responsibility should be vested in the residential parent and I am presently satisfied that both children should live with the mother.

2. There are a number of reasons for that conclusion: she has historically been the children's primary carer; both children have meaningful relationships with her; their residence with the father will likely lead to continuing deterioration of their relationships with the mother; their residence with the mother will likely enable them to maintain healthy and meaningful relationships with both parents; the children are not at risk of harm in either household; and the father apparently lacks the insight possessed by the mother about the likely adverse effect of the parental conflict upon the children.

3. It is true, as the father contended, that the eldest child could rebel against orders to that effect, but it seems to me just as likely she will be relieved of any current pressure she may feel to choose one parent over the other. The relief of such pressure would come from her knowledge the Court has re-evaluated the family’s circumstances and decided that her best interests are promoted by an order that she live with the mother and her sibling. 

4. I am satisfied the children should spend “substantial and significant time” (s 65DAA(3)) with the father. The parties were of that view in November 2015 and again in January 2016 and nothing put to the Court today would dissuade from that conclusion. The orders about the children's expenditure of substantial and significant time with the father will resemble the orders previously made between the parties.

5. I intend to make an order providing for the children to be exchanged between the parties at school when possible or otherwise at a neutral venue. None of the evidence placed before the Court by the parties identified any neutral venue that should be used and so that decision is necessarily, to some extent, arbitrary. It is common ground the parties both live in Sydney’s northern suburbs. The venue will therefore be the McDonald's restaurant at Suburb H, which is the closest suburban franchise to the mother’s home. 

6. The orders will also make provision for the children to have telephone communication with the parents once each week.

7. There will be a restraint on the children's removal from Australia without the consent of both parents, just as the orders previously made in 2015 and 2016 provided. 

8. Otherwise, the orders are self-explanatory.

Property orders

1. The father proposed in his Amended Application in a Case that an order be made for the payment of a certain sum in British pounds from a controlled monies account to the United Kingdom Revenue and Customs Service. However, the application for that order was expressly withdrawn by the father prior to the commencement of the hearing and, as a consequence, it will be dismissed. 

2. The mother pressed for an order in her Response to an Application in a Case providing for a capital gains tax debt of $99,541.10 to be paid from the same controlled monies account. Evidence was adduced in support of that application, though neither party made any submission in relation to it. 

3. I intend to make an order in the terms sought by the mother. During the course of the parties' relationship, they held (at certain times) three parcels of real property, two of which the mother owned as the sole legal proprietor. The properties were sold and the net sale proceeds of each parcel of property were deposited into the controlled monies account administered by a firm of solicitors. The mother deposed she has a capital gains tax liability, quantified at $99,541.10, arising out of the sale of those properties. She proposed that the debt be now paid, since it is due this month. I therefore make an order compelling the parties to take all necessary steps to ensure the immediate payment of that sum from the controlled monies account.

4. The father can have no complaint. He proposed in his Amended Response to Initiating Application, filed on 15 December 2016, a final property settlement order providing for use of the funds in the controlled monies account to discharge the mother's capital gains tax liability arising from the sale of those properties. In addition, numerous previous orders have been made between the parties, in November 2015, January 2016, February 2016, April 2016 and November 2016, requiring their payment of certain monies to discharge liabilities of one or either of them. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 March 2017.

Associate: 

Date:  5 April 2017