Appleton & Appleton - [2011] FamCA 70

FAMILY COURT OF AUSTRALIA

APPLETON & APPLETON

[2011] FamCA 70

FAMILY LAW – CHILD SUPPORT – father’s application to set aside binding child support agreement on the grounds of exceptional circumstances – Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) does not render this child support agreement more difficult to set aside – where the father is of considerable financial means – disparity between child support payable under the agreement and child support payable as assessed by Child Support Agency does not constitute exceptional circumstance or hardship – limitations on the father’s ability to make use of tax effective trust distributions are not material considerations – decline in the father’s financial circumstances as a result of the global financial crisis was temporary – father’s financial circumstances are improving – father’s failure to reduce discretionary expenditure contributed to his temporary financial insecurity – absence of temporal correlation between child support liability and father’s capacity to pay child support does not itself constitute exceptional circumstance or hardship – child support agreement entered into as consideration for binding financial agreement – setting aside child support agreement would cause some unfairness to the mother – application to set aside agreement is dismissed

FAMILY LAW – CHILDREN – parties agree to equal shared parental responsibility

FAMILY LAW – CHILDREN – equal or substantial and significant time – whether children’s alternate weekend time with the father should be expanded to at least one weekday – parental conflict is not an influential factor – advantage the children would obtain in participating in routine extra-curricular activities is not outweighed by the children spending a few extra hours each fortnight with the father – children’s weekend time with the father will conclude on Monday morning – telephone communication

Child Support (Assessment Act) 1989 (Cth) ss 80C(2)(c), 136
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth), Sch 5
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZU

Balzano & Balzano (2010) FLC 98-048
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Venson & Venson (No. 2) [2010] FamCA 963

APPLICANT:

Mr Appleton

RESPONDENT:

Ms Appleton

FILE NUMBER:

NCC

3018

2007

DATE DELIVERED:

17 February 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

27 & 28 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick

SOLICITOR FOR THE APPLICANT:

Rankin Nathan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Peter Hamilton & Associates

Orders

With the consent of the parties, it is ordered in accordance with the document entitled “Minutes of Consent” signed by the parties and/or their legal representatives, dated 28 January 2011, which is marked Exhibit A and placed with the Court file.
1.1The Orders made in the Family Court of Australia, Newcastle, dated 18 October 2007, be discharged.
1.2The Mother and Father have equal shared parental responsibility for the children K born … March 2000, B born … May 2003 and M born … September 2005.
1.3The Mother and Father each have responsibility for making decisions concerning the day to day care, welfare and development of the children whilst the children are in their respective care.
1.4The children live with the Mother.
1.5The children spend time and communicate with the Father as follows:
1.5.1For half of each school holiday period as agreed or failing agreement from the conclusion of school on the last day of school term until 3.00pm on the day that marks the midpoint of the school holiday period in each even numbered year and from 3.00pm on the day that marks the midpoint of the school holiday period until the commencement of school at the beginning of the next school term in each odd numbered year.
1.5.2From 3.00pm 22 December until 3.00pm 25 December in each odd numbered year.
1.5.3Should the Easter period not fall within the school holidays:
1.5.3.1From the conclusion of school on the Thursday immediately prior to Good Friday until 3.00pm Easter Saturday on the first occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.
1.5.3.2From 3.00pm Easter Saturday until the commencement of school on the Tuesday immediately following Easter Monday on the second occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.
1.5.4From 5.00pm on the Saturday prior to Father’s Day until 7.00pm Father’s Day.
1.5.5On the birthdays of each of the children, being … March, … May and … September, as follows:
1.5.5.1On a school day from 5.00pm until 8.00pm.
1.5.5.2On a non-school day from 3.00pm until 8.00pm, if the children are not otherwise spending time with the Father that day.
1.5.6On the Father's birthday, being … April, as follows:
1.5.6.1If the father’s birthday is a school day, from the conclusion of school on the father’s birthday, until the commencement of school, or 10.00am if it is a non-school day, on the day following the father’s birthday.
1.5.6.2If the father’s birthday is not a school day, from 7.00pm the day before until 8.00pm on the father’s birthday.
1.5.6.3If the father’s birthday occurs during a school holiday period when the children are living with the Mother and the children will be more than 100km from McDonalds at C on that day then the children will not spend time with the Father on this day.
1.5.7At other times as agreed between the parties in writing.
1.6The periods in 1.5 to be suspended as follows:
1.6.1From 3.00pm 22 December until 3.00pm 25 December in each even numbered year.
1.6.2Should the Easter period not fall within the school holidays:
1.6.2.1From the conclusion of school on the Thursday immediately prior to Good Friday until 3.00pm Easter Saturday on the second occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.
1.6.2.2From 3.00pm Easter Saturday until the commencement of school on the Tuesday immediately following Easter Monday on the first occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.
1.6.3From 5.00pm on the Saturday prior to Mother’s Day until 7.00pm Mother’s Day.
1.6.4On the birthdays of each of the children, being … March, … May and … September as follows:
1.6.4.1On a school day from the conclusion of school until 5.00pm.
1.6.4.2On a non-school day from 3.00pm until 8.00pm, if the children are otherwise spending time with the Father that day.
1.6.5On the Mother’s birthday, being … July, as follows:
1.6.5.1If the mother’s birthday is a school day, from the conclusion of school on the mother’s birthday, until the commencement of school, or 10.00am if it is a non-school day, on the day following the mother’s birthday.
1.6.5.2If the mother’s birthday is not a school day, from 7.00pm the day before the mother’s birthday until 8.00pm on the mother’s birthdays.
1.6.5.3If the mother’s birthday occurs during a school holiday period when the children are spending time with the Father and the children will be more than 100km from McDonalds at C on that day then the children will not spend time with the Mother on this day.
1.7The periods in 1.5 to be implemented as follows:
1.7.1At the commencement of each period by the Father or his nominee collecting the children from school, with the Mother or her nominee to bring to the school any child that is not attending school that day, if it is a school day and by the Father or his nominee collecting the children from the Mother or her nominee at McDonalds at C if it is a non-school day.
1.7.2At the conclusion of each period by the Father or his nominee returning the children to school, with the Mother or her nominee to attend the school if any child is not attending school that day to collect that child, if it is a school day and by the Father or his nominee returning the children to the Mother or her nominee at McDonalds at C if it is a non-school day.
1.8If either party will be unavailable to care for the children for more than one (1) consecutive night during a period when the children are living with or spending time with them then he or she is to give the other parent the first option to care for the children during that period.
1.9The parties are to keep each other informed of their current residential address, landline and mobile telephone numbers, and email address and notify the other of any changes to those details within 24 hours of such change.
1.10Each party is to keep the other informed at all times as to all medical, dental or other health related treatment being undertaken by the children including the name and telephone number of the treating dental, medical or other professional.
1.11Each party is to authorise any medical, dental or allied health professional who treats the children to speak with both parties about the children’s health and medical treatment, including providing both parties with copies of any reports or other information.
1.12The parties must telephone the other as soon as possible on the happening of any of the following:
1.12.1   The children or any of them becoming seriously ill.
1.12.2   The children or any of them becoming hospitalised.
1.12.3   The children or any of them being involved in an accident.
1.13Each party is to provide such consents and/or authorities as may be required by the school or schools the children attend to enable each party to receive reports, school photograph order forms, letters and any other notices in relation to the children and to permit both parties to speak with the children’s teachers concerning each child’s education and school performance.
1.14The parties are each restrained from denigrating the other or any member of the other party’s family or household in the presence or hearing of the children and, as far as possible, from allowing any other person to denigrate the other party or any member of the other party’s family or household in the presence or hearing of the children.
1.15Any Passport issued to any of the children is to be held by the Mother, other than as provided for in Order 1.16.
1.16Either party is at liberty to take the children on an overseas holiday during a period that the children are living with or spending time with them or during such other period as agreed between the parties providing that:
1.16.1They provide the other party with at least sixty (60) days notice in writing, by letter or email, of their intention to take the children overseas, including notice of the proposed departure date and destination/s.
1.16.2The countries to be visited during the overseas holiday must, unless otherwise agreed in writing between the parties:
1.16.2.1Be a signatory to the Hague Convention on International Child Abduction, Singapore or as agreed.
1.16.2.2Have an Australian Department of Foreign Affairs and Trade (DFAT) travel advisory notice of no higher than Level 1 – Be Alert to Your Own Security or Level 2 – Exercise Caution at the time of travel.
1.16.3If the children are travelling overseas with the Father, the Mother must provide the children's Passports to the Father not less than thirty (30) days prior to departure.
1.16.4At least fourteen (14) days prior to the nominated departure date, pursuant to 1.16.1, the travelling party must provide the other party with the following information in writing:
1.16.4.1        Proposed travel itinerary;
1.16.4.2        Flight details;
1.16.4.3Contact addresses and contact telephone number(s) for the duration of the period that the children are to be overseas.
1.16.5The Father must deliver the children’s Passports to the Mother within seven (7) days of the children returning from the overseas holiday.
The parties shall take all reasonable steps to ensure that the children spend time with the father, in addition to the time prescribed by Order 1.5 hereof, each alternate weekend during school terms, and for that purpose:
(a)The time shall commence on the first weekend of each school term,
(b)The time shall commence at the conclusion of school on Friday,
(c)The time shall conclude at the commencement of school on the following Monday, unless the Monday is a public holiday in which case the time shall conclude at the commencement of school on the following Tuesday.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Tuesday and Thursday when the children are living with the mother, between 6.30pm and 7.00pm on Tuesday and between 6.00pm and 6.30 pm on Thursday, and for that purpose the father shall telephone the children on the telephone number nominated and provided by the mother to the father pursuant to Order 1.9 hereof, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(b)The mother each Tuesday and Thursday when the children are spending time with the father, between 6.00pm and 6.30pm on each day, and for that purpose the mother shall telephone the children on the telephone number nominated and provided by the father to the mother pursuant to Order 1.9 hereof, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.
The application to set aside the child support agreement dated 11 September 2007 is dismissed.
Any and all outstanding applications are dismissed.

NOTATION

A.With the consent of the parties, Notation A1 is made in accordance with the document entitled “Minutes of Consent” signed by the parties and/or their legal representatives, dated 28 January 2011, which is marked Exhibit A and placed with the Court file.
A1.It is agreed between the parties that Order 1.8 is not intended to prevent the children, or any of them, spending more than one (1) consecutive night with relatives, such as grandparents, and it is the parties’ intention in agreeing to Order 1.8 that this Order is to be used in situations when one party is unable to personally care for the children for more than one consecutive (1) night.

IT IS NOTED that publication of this judgment under the pseudonym Appleton & Appleton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3018 of 2007

MR APPLETON

Applicant

And

MS APPLETON

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings cannot resolve their dispute about a child support agreement, nor some residual aspects of their dispute about parenting orders for their children. Otherwise they have been able to achieve a compromise.
As to the child support agreement, which the parties made in September 2007, the father wishes to set it aside by reason of exceptional circumstances. The mother wishes to retain the agreement.
As to the parenting orders, the parties are in agreement that they should have equal shared parental responsibility for the children, that the children should live with the mother, and that they should spend substantial and significant time with the father. The disagreement is about the amount of time spent by the children with the father and the frequency of their telephone communication with both parties.

Competing proposals and primary evidence

The parties produced and tendered a Minute of Orders setting out the parenting orders to which they each consented and requested the Court to make orders in accordance with that document.[1]
[1] Exhibit A
Otherwise, the applicant father pressed the Court for orders that the time spent by the children with him each alternate weekend during school terms conclude at the commencement of school on Tuesday morning and, as from the beginning of either the 2012[2] or 2013[3] academic years, the commencement of school on Wednesday morning. The father did not ever clarify his position in that regard. The father also desired that the children communicate by telephone with the party with whom they are not then staying each Tuesday and Thursday nights between 6.30 and 7.30 pm.[4]
[2] Family Consultant memorandum dated 17 June 2010, par 2
[3] Amended Application, Order 5.1.3
[4] Amended Application, Orders 5.8, 8
In support of his proposals about both the child support agreement and the contested parenting orders, the father relied upon the following evidence:
a)His affidavit filed on 22 July 2010.
b)His Financial Statement filed on 22 July 2010.
c)His affidavit filed on 29 October 2010.
The respondent mother pressed the Court for orders that the time spent by the children with the father each alternate weekend during school terms conclude at the commencement of school on Monday morning, consistently with the current interim arrangement. As for telephone communication, the mother’s proposal depended upon with whom the children were staying. When with the mother, she proposed that the children communicate by telephone with the father on 3 occasions each week,[5] provided the communication ended by 7.00 pm when the children were readying for bed. When staying with the father, she proposed that the children communicate by telephone with her each Saturday between 6.00 and 7.00 pm.[6]
[5] Response, Order 6(e)
[6] Response, Order 9
In support of her proposals about both the child support agreement and the contested parenting orders, the mother relied upon the following evidence:
a)Her affidavit filed on 1 October 2009.
b)Her affidavit filed on 21 July 2010.
The mother was not permitted to rely upon the evidence contained within her affidavit and Financial Statement, both filed on 11 January 2011. Those documents were filed in contravention of procedural orders made on 21 December 2009 and 5 August 2010, and were filed and served in such proximity to the trial that the father was prejudiced in having to meet that fresh evidence.
Each party also tendered an array of documents.[7]
[7] Exhibits F1-F5, M1-M12
In respect of the parenting orders, the parties mutually relied upon the evidence of the Family Consultant, Mr O, contained within his memoranda dated 6 October 2009, 17 November 2009, and 17 June 2010. Although that evidence was not sworn or affirmed by the Family Consultant, the evidence was consensually admitted so as to comply with s 69ZU of the Family Law Act1975 (Cth) (“the Act”), and the Family Consultant was not required by either party for cross examination.

Background

The parties began their cohabitation in March 1996, married in August 1996, and separated in September 2006.
Three children were born during their relationship, being:
a)K, born in March 2000.
b)G, born in May 2003.
c)M, born in September 2005.

The children remained living with the mother following the parties’ separation, but spent time with the father when agreed between the parties.[8] At that point in time the parties were not beset by conflict.
[8] Father’s affidavit filed 22 July 2010, par 5
The parties were commendably able to resolve their differences about the children and their property interests by entering into a series of orders and agreements in late 2007.
On 11 September 2007, the parties entered into a child support agreement, which was subsequently registered with the Child Support Agency.[9] Relevantly, the child support agreement made provision to the following effect:
a)The agreement was made in consideration of the parties also entering into a binding financial agreement (Recital L).
b)The father must pay to the mother the sum of $400 per child per week until each child completes their high school education (Paragraph 1).
c)The child support payments are adjusted in accordance with annual Consumer Price Index (CPI) movements (Paragraph 2).
d)The father must pay school fees in respect of the school attended by the children (Paragraph 3).
[9] Father’s affidavit filed 22 July 2010, pars 159-161
The binding financial agreement, referred to in the recitals to the child support agreement, was also struck by the parties on 11 September 2007.[10] The binding financial agreement was annexed to the child support agreement and the child support agreement was annexed to the binding financial agreement.
[10] Mother’s affidavit filed 1 October 2009, par 10
The binding financial agreement divided the parties’ property interests and made provision for the father’s conditional payment to the mother of spousal maintenance in the sum of $300 per week (Paragraphs 3.1.1, 3.2), together with payment of private health insurance for her (Paragraph 3.1.2, 3.2). The binding financial agreement was also made in consideration of the parties entering into the child support agreement (Recitals M and N).
Shortly thereafter, on 18 October 2007, the parties entered into final consent orders regulating parenting arrangements for the children.[11] Those orders made provision to the following effect:
a)The parties were allocated equal shared parental responsibility for the children (Order 1).
b)The children would live with the mother (Order 3).
c)The children would spend time and communicate with the father as agreed between the parties (Order 4), which although not defined with any more precision, was noted to include alternate weekends commencing on Friday afternoon and concluding on Sunday afternoon, block periods during school holidays, and special occasions (Notations A-D).
[11] Father’s affidavit filed 22 July 2010, par 6; Mother’s affidavit filed 1 October 2009, par 9
The mother asserted that the orders and notations about the time to be spent by the children with the father were framed in such imprecise terms because of the father’s unpredictable work commitments.[12]
[12] Mother’s affidavit filed 1 October 2009, par 72
The father alleged that problems in reaching agreement with the mother about the time to be spent by the children with him began to develop after only a short period of time.[13] The mother implicitly agreed with that assessment, which she attributed to the father seeking to have the children spend alternate Sunday nights with him, to which she was opposed.[14]
[13] Father’s affidavit filed 22 July 2010, pars 7-11
[14] Mother’s affidavit filed 1 October 2009, pars 77-79, 102-103
From that time on the parties became enmeshed in conflict, which was compounded by the mother’s knowledge that the father had commenced a relationship with the mother’s former sister-in-law, Ms N,[15] and the father’s knowledge that the mother had commenced another relationship.[16]
[15] Mother’s affidavit filed 1 October 2009, pars 84-92
[16] Mother’s affidavit filed 1 October 2009, pars 93-99
The point was reached where the father was no longer prepared to stand by the parenting orders made in October 2007. He filed an Initiating Application on 4 August 2009, which was later amended on several occasions, seeking more specific parenting orders.
The father’s Application was first amended on 2 September 2009, at which time he added an application to set aside the child support agreement reached in September 2007.
It is common ground that the father reduced his child support payments under the child support agreement by half in or about November 2008.[17] Although the mother asserted that the father ceased payments altogether,[18] her counsel confirmed that the payments were in fact reduced.
[17] Father’s affidavit filed 22 July 2010, par 185
[18] Mother’s affidavit filed 1 October 2009, par 111
During the litigation, interim orders were made consensually between the parties on 21 December 2009, which effectively provided as follows:
a)The former parenting orders made on 18 October 2007 were discharged (Order 1.1).
b)The parents were allocated equal shared parental responsibility for the children (Order 1.2).
c)The children would live with the mother (Order 1.4).
d)The children would spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (Order 1.5.3), during school holidays (Order 1.5.4), and on special days (Orders 1.5.5, 1.5.6, 1.5.7).
e)The children would communicate with the father by telephone each Tuesday and Thursday between 6.00 and 6.30 pm (Order 1.5.8).
f)The children would communicate with the mother, when staying with the father during school holidays, each Tuesday and Thursday between 6.00 and 6.30 pm (Order 1.7).
g)The mother was restrained from enforcing the child support agreement, or payment of the accrued arrears, pending determination of the father’s application to set the child support agreement aside (Order 1.16).
The matter was then adjourned for final hearing on 5 August 2010. The trial could not proceed on that day and was adjourned until 27 January 2011. The trial commenced on that day and concluded on 28 January 2011, at which time judgment was reserved.

Child support agreement

The father proposed that the child support agreement be set aside as from 17 July 2009.[19] The significance of that date is that it is the date to which the parties agree that child support payments have been paid in full. Arrears have accumulated since that time. It is agreed that those arrears are now quantified at $62,000.
[19] Amended Application filed 22 July 2010, Orders 17-18
Pursuant to procedural orders made on 5 August 2010, the father particularised his claim to set aside the child support agreement on the basis of exceptional circumstances in the following way, following abandonment of the first particularised ground during the trial:[20]
[20] Exhibit F1
a)The substantial reduction of the [father’s] net income since the making of the child support agreement.
b)The generosity of the binding financial agreement particularly in circumstances where the [father’s] ability to vary the child support agreement has been affected by retrospective legislation.
c)The level of child support relative to a formula assessment now provided in the Child Support (Assessment) Act 1989 (Cth).
d)The need for the [father] to dispose of assets in order to meet his ongoing financial commitments under the child support agreement, such disposal being brought about by the unforeseen, to the [father], reduction in his net income.
e)The global financial crisis which had a significant effect on the nature of the [father’s] business activities, such crisis being unforeseen at the time of entering into the agreement.
f)In relation to hardship the [father] particularises the factors to include the following:
i)The inability of the [father] to adequately support himself from his remaining net income after his child support commitments.
ii)The [father’s] inability to continue to meet his child support commitments without the sale of assets.
iii)The past sale of assets to meet the [father’s] financial obligations.
iv)The unsustainable level of the [father’s] child support commitments.
g)The change in the tax treatment of distributions from the Appleton Family Trust as a result of Taxation Ruling TR … (a copy of which was tendered[21]).
[21] Exhibit F5
The subject child support agreement was struck on 11 September 2007 and the father instituted his claim to set aside that agreement when he amended his Initiating Application on 2 September 2009.
Between those two dates, on 1 July 2008, relevant parts of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the amending Act”) came into force, which had the effect of amending the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
Schedule 5 of the amending Act introduced a raft of amendments to the Assessment Act in so far as it regulated child support agreements. In particular, the amending Act introduced concepts of “binding child support agreements” and “limited child support agreements”, and reformulated the provisions of s 136 with respect to the circumstances in which child support agreements could be set aside.
From 1 July 2008, s 136 of the Assessment Act provided as follows:
136 Power of court to set aside child support agreements or termination agreements
(1) A party to either of the following agreements may apply to a court having jurisdiction under this Act for the court to set aside the agreement:
(a) a child support agreement that has been accepted by the Registrar under section 92 or 98U;
(b) a termination agreement, or a written agreement referred to in paragraph 80G(1)(b), that has been accepted by the Registrar under section 92.
(2) If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:
(a) that the party’s agreement was obtained by fraud or a failure to disclose material information; or
(b) that another party to the agreement, or someone acting for another party:
(i) exerted undue influence or duress in obtaining that agreement; or
(ii) engaged in unconscionable or other conduct;
to such an extent that it would be unjust not to set aside the agreement; or
(c) in the case of a limited child support agreement:
(i)that because of a significant change in the circumstances of one of the parties to the agreement, or a child in respect of whom the agreement is made, it would be unjust not to set aside the agreement; or
(ii)that the agreement provides for an annual rate of child support that is not proper or adequate, taking into account all the circumstances of the case (including the financial circumstances of the parties to the agreement); or
(d) in the case of a binding child support agreement—that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to a proceeding under subsection (1) are the parties to the agreement.
(4) If:
(a) the court sets aside a child support agreement under this section; and
(b) the court is satisfied as mentioned in paragraph 117(1)(b) (departure orders);
the court may make an order under Division 4 of Part 7 without an application having been made under section 116.
(5) If:
(a) the court sets aside a child support agreement under this section; and
(b) the court is not satisfied as mentioned in paragraph 117(1)(b) (departure orders); and
(c) the payee has received or will receive benefits pursuant to the agreement;
the court may still make an order that departs from the administrative assessment where it is just and equitable to do so, having regard to the benefits that the payee has already received pursuant to the agreement.
It is common ground in these proceedings that the subject child support agreement is a “binding” agreement, and that the current provisions of s 136(2) of the Assessment Act extracted above must be satisfied by the father in order to succeed with his application. The father relies only upon s 136(2)(d) to establish his case.
Although not addressed at all in submissions, I do not accept the father’s implied assertion that his case to set aside the child support agreement is rendered any more difficult by the amending Act (Particular (b)). It is true that the version of s 136 introduced by the amending Act may now make it more difficult to set aside “binding” child support agreements than “limited” child support agreements, but that is of little consequence in this case. For a child support agreement to now be regarded as a “binding” agreement it is necessary for the parties to receive antecedent legal advice about the consequences of the agreement (s 80C(2)(c) of the Assessment Act). Notwithstanding the absence of need for legal advice when the subject child support agreement was struck in September 2007, the father did receive independent legal advice about both the child support agreement and the binding financial agreement, which agreements were expressly inter-dependent upon one another. Both agreements were executed by the father on the same day in the presence of his solicitor.
Nor am I persuaded by the submission that the disparity between the child support payable under the agreement and the child support that would be payable pursuant to a legislative formula is a reason why there are exceptional circumstances and hardship occasioned to the father (Particular (c)). The father must, or should, have understood when he entered into the child support agreement that he was agreeing to pay child support considerably in excess of the amount that would be payable under the legislative formula. There was disparity then and there is disparity now. Nothing has changed, even allowing for incremental adjustments to both the agreed and assessed child support payments. Even though the agreed child support payments may be about treble the administrative assessment,[22] the father did not adduce evidence of any significant and unforeseen increase in the disparity.
[22] Father’s affidavit filed 22 July 2010, pars 176, 203, 221
Nor am I satisfied that recent limitations upon the father’s ability to distribute income under the Appleton Family Trust are a material consideration in respect of either exceptional circumstances or hardship (Particular (g)). That particular is a reference to the father’s use of a corporation called S Pty Ltd to receive distributions from the Appleton Family Trust. The father alleged that ATO Taxation Ruling TR… now precludes such distributions and created a taxation liability for him in respect of past distributions. The mother does not disagree the taxation ruling has that effect. However, the father did not even acquire his interest in S Pty Ltd and use it as a tax-effective beneficiary until well after the child support agreement was struck. The father acquired his interest in S Pty Ltd and distributed money to it in the 2009 financial year.[23] In other words, the use of that corporation as a taxation device was both conceived and prohibited after the child support agreement was reached.
[23] Father’s affidavit filed 29 October 2010, par 23
Those issues aside, there is considerable overlap in the remaining circumstances asserted by the father to constitute exceptional circumstances and hardship. In essence, the father’s grievance is that for various reasons his capital and income have diminished to the point where he is simply unable to maintain the generous child support payments demanded by the child support agreement. The father’s case rises or falls on whether the deterioration in his financial circumstances since the agreement was made constitute exceptional circumstances by reason of which he will suffer hardship if the child support agreement is not set aside.
Both parties cited and relied upon the following observations made in Venson & Venson (No. 2) [2010] FamCA 963 at [99-100]:
The test of “exceptional circumstances” has been the subject of judicial interpretation in respect of s 136(2)(d) of the Act (see Balzano & Balzano (2010) FLC 98-048 at [38-41]) and also s 79A of the Family Law Act 1975 (Cth) (see Christian & Donald [2008] FamCAFC 44 at [34-45]; Marriage of Simpson & Hamlin (1984) 9 Fam LR 1040 at 1045). The term “exceptional circumstances” has not been defined with precision, but generally encompasses events which are quite extraordinary, which occurred unexpectedly, and which could not have been reasonably foreseen or contemplated. Those features incorporate both subjective and objective considerations. Although that is the general characterisation, neither one nor all of those characteristics is either necessary or sufficient to meet the test. It is a question of fact and degree in each case.
For the purposes of s 136(2)(d) of the Act, the applicant must prove not only the existence of exceptional circumstances, but also that those circumstances arose after the subject agreement was made and that hardship would be occasioned by them if the agreement is not set aside.
The parties therefore agree that it is by reference to those principles that the father’s financial tribulations must be evaluated.
The father enjoys a variety of proprietary interests in a financial services business known generically as the “W Group”. According to the father’s oral and affidavit[24] evidence, his interests may be summarised as follows:
a)The father holds 5 of 168 shares in W Pty Ltd, either personally or through a corporation of which he is the sole director and shareholder, called Appleton Nominees Pty Ltd. The father receives dividends on those shares.[25] He is also employed by W Pty Ltd and is paid a salary.
b)The father holds 5 of 168 shares in “W Partners”.
c)Appleton Nominees Pty Ltd, as trustee for the Appleton Family Trust (“the family trust”), now holds a 20% stake in “W Planning”, which was formerly a 29% stake. The father is a beneficiary of the family trust and he controls the corporate trustee. The trust receives distributions from “W Planning”. The husband decides how the funds are distributed.
d)Appleton Nominees Pty Ltd, as trustee for the Appleton Family Trust, holds 5 of 168 shares in “W Financial Services Trust”.
[24] Father’s affidavit filed 22 July 2010, par 172
[25] Father’s affidavit filed 22 July 2010, par 172; Exhibit F3
The two main components of the father’s annual income are the salary he is paid by W Pty Ltd and the distributions he receives from W Planning via the family trust. The distributions from W Planning represent the majority of the father’s annual income.
For the few financial years immediately preceding the parties’ entry into the child support agreement the father’s annual income was on an upward trajectory. In 2005 the father’s taxable income was nearly $300,000, in 2006 it was nearly $400,000, and in 2007 it was approximately $480,000.[26]
[26] Exhibit F4
When the parties entered into the binding financial agreement and child support agreement in September 2007, the father’s total annual income was approximately $440,000 per annum,[27] comprising salary of $130,000 and distributions of $310,000. The apportionment of that income was recited in the binding financial agreement (Recital G).
[27] Father’s affidavit filed 22 July 2010, par 166
The effect of the binding financial agreement was, in part, to vest solely in the father the parties’ interests in the business assets (Paragraphs 7-8) and to vest solely in the mother the other matrimonial realty and personalty of significance (Paragraphs 4-6). The agreement expressly recognised the parties’ understanding that the mother was not pursuing any interest in the father’s business (Recital N). The father therefore retained, as he wished, his business interests and the income he derived therefrom.

Into the 2008 financial year the father’s income continued to increase. In that year his total taxable income was approximately $530,000.[28]
[28] Exhibit F4
However, the trend of escalating income ceased towards the end of 2008. The father attributed that to the onset of the global financial crisis,[29] and the mother really takes no issue with that assessment.
[29] Father’s affidavits filed 22 July 2010, par 171 and 29 October 2010, pars 29-31
The global financial crisis generally resulted in a devaluation of invested funds. W Planning invested funds on behalf of its clients, and the income it derived was proportionate to the value of the invested funds under its management. With the devaluation of those funds came lower profitability for W Planning, and hence less distributions to the father through his family trust.[30]
[30] Father’s affidavit filed 29 October 2010, pars 30-31
For the year to June 2009, the distributions received by the father through the family trust totalled approximately $225,000,[31] whereas they had been $310,000 in September 2007[32] and over $400,000 in June 2008.[33]
[31] Exhibit F4
[32] Binding Financial Agreement, Recital G
[33] Exhibit F4
Although the father experienced a substantial decrease in the amount of annual distributions he received, by comparison, his salary continued to show modest increases. By 2009 his salary had increased to $132,000,[34] and his salary is estimated at $137,500 for 2010[35] and $145,000 for 2011.[36]
[34] Exhibit F4
[35] Father’s affidavit filed 29 October 2010, par 11(a)
[36] Father’s affidavit filed 29 October 2010, par 10(a)
By reason of the decreased distributions being received, the father felt the need to realise a capital asset and use the sale proceeds to meet his various obligations.[37] In July 2009 the father caused the family trust to sell 9% of its 29% stake in W Planning, reducing its stake to 20%.[38] The sale generated proceeds slightly exceeding $400,000, of which the father received about $385,000.[39] The father gave evidence of the manner in which those funds were expended, which included rectifying the arrears that had accumulated under the child support agreement since November 2008.[40]
[37] Father’s affidavit filed 22 July 2010, par 192
[38] Father’s affidavit filed 22 July 2010, par 187
[39] Father’s affidavit filed 22 July 2010, pars 187-188, 191
[40] Father’s affidavit filed 22 July 2010, par 189-190
Although a diminished stake in W Planning meant proportionately diminished distributions to the father through the family trust, the amount of the distributions has again begun to increase. From the beginning of January 2010 the monthly distributions increased to $17,000 per month from $11,000 per month in the latter months of 2009.[41] The father deposed that he would receive similar distributions up until June 2011, resulting in his current receipt of annual distributions totalling approximately $204,000.[42]
[41] Father’s affidavit filed 22 July 2010, Annexure O; Exhibit F3
[42] Father’s affidavit filed 29 October 2010, par 10(c)
From the current annual distribution income of $204,000, which is received by the father based on his 20% stake in W Planning, one may extrapolate that the annual distribution income which would be derived if the father still held the former 29% stake in W Planning is just under $300,000. That is an equivalent distribution income to that enjoyed by the father when the child support agreement was struck in September 2007, which was $310,000. Of course, the father only now enjoys an indirect capital stake of 20% rather than 29% in W Planning through the family trust, but the commencement of an upward trend in distribution income from January 2010 is plainly evident.
The father’s current gross annual income is estimated at about $369,000.[43] Although that is still some $71,000 less than his gross income of $440,000 at the time the child support agreement was struck, the differential in his net income would necessarily be considerably less than $71,000.
[43] Father’s affidavit filed 22 July 2010, pars 194, 201
The father’s current net annual income is estimated by him at $213,456.[44]
[44] Father’s affidavit filed 22 July 2010, par 202
The child support agreement and binding financial agreement oblige the father to currently make annual payments totalling $133,169.[45] The father is years in advance on the loan repayments he is obliged to make in respect of the former matrimonial home,[46] so that will not be an additional burden for some time.
[45] Father’s affidavit filed 22 July 2010, par 203
[46] Father’s affidavit filed 22 July 2010, pars 207, 226
The father has a business liability to the St George Bank. By reason of voluntary business transactions that occurred in November 2009 the father’s repayment liability to the Bank increased by $5,000 per month for at least 12 months.[47] According to the bank documents, payment of the amortisation amount of $5,000 was to be re-evaluated by the Bank at the expiry of 12 months in November 2010.[48] That occurred, and on 1 November 2010 the Bank notified the father that his repayments had been converted to “interest only” for a further 12 months, after which time the loan is to re-commence amortisation.[49] Consequently, the father is relieved of the liability for the additional monthly payments of $5,000, at least until November 2011.
[47] Father’s affidavit filed 22 July 2010, pars 195-197, 202; Annexure R
[48] Father’s affidavit filed 22 July 2010, Annexure R
[49] Exhibit F2
As a result, at least until the end of this calendar year, the father will have annual net income of $80,287 (= 213,456 – 133,169) to maintain himself. The loan interest repayments to the St George Bank and motor vehicle lease payments, totalling some $64,000,[50] are made by the father as pre-tax payments and do not affect that net calculation.[51] I do not accept the father’s contention that he would have only $22,817, or even nothing, left to provide for himself,[52] which calculations were not explained at any point in the proceedings.
[50] Father’s affidavits filed 22 July 2010, par 202 and 29 October 2010, par 21(a), 21(c)
[51] Father’s affidavit filed 22 July 2010, par 202
[52] Father’s affidavit filed 22 July 2010, par 208
I am satisfied on the evidence that the father will have sufficient net income to meet repayment instalments in order to discharge the recently incurred liability to the ATO in respect of S Pty Ltd amounting to $63,383.[53]
[53] Father’s affidavit filed 29 October 2010, par 23
Although arrears of $62,000 have accrued under the child support agreement, the enforcement of those arrears is discretionary. If the arrears are enforced in full they need not be discharged by immediate payment of a lump sum.
All of the father’s income, in the form of salary, dividends, and distributions, is received as a consequence of his employment by and proprietary interests in the W Group. The W Group is sufficiently confident in its viability and financial future that it committed to a fresh lease of substantially renovated and expanded business premises in 2009,[54] and acquired another strategic business in Queensland in 2010.[55]
[54] Exhibit M5
[55] Father’s affidavit filed 22 July 2010, pars 195-196
The Queensland acquisition attracted industry attention and acclaim. … An industry group published an article about the acquisition in mid 2010, selected parts of which were tendered.[56] The father conceded in cross examination that business growth of 5-10% has been experienced since the acquisition – less than predicted in the article, but handsome growth nonetheless.
[56] Exhibit M7
In cross examination the father also agreed that:
a)The gross fees of W Pty Ltd increased in 2010 from 2009 – up from about $6.6 million to $7.2 million.
b)The profit of W Pty Ltd available for appropriation increased in 2010 from 2009 – up from about $1.17 million to about $2.35 million.
c)The fees of W Partners continue to increase, which will inferentially lead to increased dividends on the shares held by the father and the family trust.
d)The income of W Planning, with the aid of the Queensland acquisition, is now increasing again. That admission by the father was consistent with the documentary evidence produced by him in his affidavit and exhibits.
The mother ultimately submitted that the financial woes suffered by the father as a consequence of the global financial crisis were really only temporary and that his financial circumstances are now improving again. That is an inference which is almost irresistible in the face of the documentary evidence and the father’s admissions, and I accept the mother’s submission.
Undoubtedly the father suffered some financial insecurity over the last two years or so, but as the mother persuasively pointed out, some of the father’s financial pain has been of his own making. That is a material consideration in the overall exercise of discretion under s 136(2) of the Assessment Act, even if not relevant to the existence of exceptional circumstances under s 136(2)(d) (see Balzano & Balzano (2010) FLC 98-048 at [56-59, 66]).
The father did not reduce his expenditure when his income reduced. He now chides himself, acknowledging that he should have reigned in his extravagant spending much sooner than he did.[57] It is abundantly clear that the father was profligate for far too long. When he did begin to reduce his expenditure he chose to reduce child support payments in preference to eliminating his discretionary expenditure on non-essential items for himself and others. The mother understandably contends that it would be unfair to visit the consequences of the father’s conduct upon the children, irrespective of whether the father acted arrogantly or foolishly.
[57] Father’s affidavit filed 22 July 2010, par 186
There can be little doubt that the father continued to enjoy an enviable lifestyle, even after November 2008, by which time he was well aware that his income had diminished considerably and had chosen to reduce the child support payments by half.
The father formed a relationship with Ms N and cohabited with her from some time in or about late 2007 until November 2009,[58] but since then, the father and Ms N have remained friends and continued to enjoy overnight stays and holidays together. The father made quite extraordinary financial provision for Ms N during their cohabitation, and even afterwards. The father paid all of their joint household expenses, allowed her to incur substantial credit on his accounts, transferred funds into her banking accounts, frequently gave her cash sums, paid legal fees for her, and leased a car for her.
[58] Father’s affidavit filed 22 July 2010, par 85
In and since 2008 the father operated numerous credit card accounts, to which Ms N had access as a supplementary cardholder. Those credit card accounts were with Citibank, Macquarie, and American Express. The father conceded the proposition in cross examination that Ms N had spent $42,785.60 on the American Express credit card in 2008 alone.[59]
[59] Exhibit M2
From about September 2007 until about July 2009 the father admits transferring the sum of $1,000 twice per month into an account held in the sole name of Ms N.[60] The father answered the mother’s demand for the production of Ms N’s bank account statements, which evidenced the transfers.[61] The father did not deny that those transfers totalled some $40,000.
[60] Exhibit M3
[61] Exhibit M8
The father also conceded in cross examination that, in addition to the regular transfers of funds into Ms N’s account, he gave her cash amounts each week or fortnight in amounts ranging between $20 and $100.
There is no evidence about what was done by Ms N with the funds paid to her by the father, or what benefit, if any, was derived by the father from expenditure of those funds. If the father had a satisfactory explanation he did not share it with the Court, in which circumstances I impute that Ms N derived the principal benefit of the funds.
The father also admitted paying some legal fees on behalf of Ms N in 2009. There could be no argument that the father received no benefit from that expenditure. The only evidence about the amount of the fees paid by the father for Ms N is the father’s admission that the sum was $1,973.62.[62]
[62] Father’s affidavit filed 22 July 2010, par 189(j)
In 2008 the father caused the Appleton Family Trust to lease a car for Ms N’s personal benefit. The father admitted in cross examination that the car cost about $30,000. He also admitted that the family trust maintained the monthly lease payments on the car up until about September 2010, at which time Ms N re-financed the lease for herself.[63] Accordingly, the family trust paid out lease payments of more than $400 per month on the car for the sole, or at least principal, benefit of Ms N for some years.
[63] Exhibit M10
Ms N was undoubtedly the fortunate recipient of the father’s economic generosity over a lengthy period of time in circumstances where the father had a legal obligation to maintain his children in the manner he had agreed with the mother. It behoved the father to meet his child support obligations before favouring Ms N with his largesse.
In March 2010, the father acquired an expensive new car. He traded-in the leased BMW that he retained under the binding financial agreement (Recital I(x)). The father said that he had insufficient funds to pay-out the residual sum and retain the car, and he believed that the second hand value of the car was less than the residual pay-out cost. The father therefore decided to acquire a new BMW with fresh finance, leasing a new BMW. The total cost of the transaction was approximately $124,000, including accessories and luxury car tax.[64] He committed to a 5 year lease with monthly payments of $1,838.57, which payments are about double the repayments incurred on his former car.[65]
[64] Exhibit M4
[65] Exhibit M9
The father sought to justify his purchase by asserting that the acquisition of even a modest car would have involved a comparable cost, once allowance was made for the tax deductibility of the lease payments at his top marginal tax rate. I reject the father’s explanation. It is glib and implausible that the father could not have found a more economical way to ensure his use of a car. He could have acquired a much cheaper car, or he could have re-financed his existing car. He said that the residual pay-out on the former vehicle was about $30,000 and he was allowed $24,500 as a trade-in value on that car.[66] The father is a man of sufficient guile and means to have arranged the finance necessary to retain that car. I find, on the balance of probabilities, that his decision to acquire a newer, bigger, and more expensive car was motivated by his desire to enjoy its comforts and prestige.
[66] Exhibit M9
In March 2010, the father also moved into different leased residential premises. ….[67] The father conceded that his weekly rent increased by $65 because of the move, which is an annual increase of more than $3,000. The father was not compelled to change residence. His decision to move and bear the extra cost was motivated by a belief that the new house would be easier to maintain and would afford him and the children a better lifestyle.[68] The father asserted that the move would also save him incurring public swimming pool fees,[69] but that is not a persuasive reason for the move. Pool fees would be simply avoided altogether by swimming in the lake or ocean nearby the father’s home in preference to the use of public baths.
[67] Father’s affidavit filed 22 July 2010, pars 209-212
[68] Father’s affidavit filed 22 July 2010, par 211
[69] Father’s affidavit filed 22 July 2010, par 212
In more recent times the father has continued to make expenditure of a discretionary nature on leisure and entertainment at the expense of meeting child support payments in full.
In April 2010 the father took the children, his parents, and Ms N on a holiday to Honk Kong. The father met at least some of the expenses of his parents and Ms N.
The father conceded in cross examination that in November 2010 he bought four tickets at a cost exceeding $400 for the eldest child and two of her friends to attend a pop concert with him as a birthday gift for the eldest child. The father also purchased tickets in September 2010 to attend other shows.[70]
[70] Exhibit M11
Throughout 2010, and to a lesser extent during 2009, the father regularly spent money each month on internet entertainment, which the father describes as subscriptions for chat and dating sites. The father estimated the overall cost at $10 per week, but conceded that the actual charges were $4-5 per minute of internet use. The father’s credit card accounts disclose that his expenditure on such sites, evidenced by payments to creditors like “epoch.com*donamis”, “meta-billing.com”, and “naa*vodhelp.com”, was more significant than the father conceded, even as recently as September and October 2010.[71]
[71] Exhibit M6, M12
Contrary to the father’s evidence that he stopped doing so because of the expense,[72] he still continued to purchase apparel from David Jones as late as August 2010.[73]
[72] Father’s affidavit filed 22 July 2010, par 217
[73] Exhibit M11
The father proposed,[74] and the mother ultimately agreed,[75] that he should be able to take the children on overseas holidays in the future. I therefore infer that the father expects to have the financial capacity to afford such overseas trips. It is trite to observe that the payment of child support is a more pressing necessity than overseas holidays.
[74] Amended Application, Order 10
[75] Annexure A, Order 16
The father deposed that he believed he would be able to maintain the level of payments required by the child support agreement when he entered into that agreement.[76] However, even if honestly held, that belief must be considered in context. The father is an integral member of a substantial financial services business. He describes himself as a professional financial adviser and should have commensurate knowledge and expertise.[77] He understood that a substantial part of his annual income, in the form of distributions from W Planning through his family trust, was dependent upon movements in the stock markets. As the mother poignantly observed, stock markets move both up and down, not just up. It was the father’s job to know that. He either did realise it and ignored the risk of downward movement, or alternatively lacked the insight to believe that it could happen. Even if the deterioration of the father’s financial circumstances was entirely unexpected by him, the reduction of his distribution income was a reasonably foreseeable consequence of a stock market fall, which itself was an eventuality that must have been reasonably contemplated.
[76] Father’s affidavit filed 22 July 2010, par 167
[77] Father’s Financial Statement, par 3
The father’s reaction to the deterioration in his financial circumstances was unreasonable. He belatedly curtailed, but did not eliminate, his discretionary expenditure. He preferred instead to reduce his child support payments.
In any event, the deterioration in the father’s financial circumstances seems, most probably, to be a temporary setback for him. His financial position is rebounding. As was pointed out in Balzano (at [62-63]), there need not be a direct temporal correlation between a child support liability and the capacity of the payer to pay the child support. The absence of such a correlation does not of itself constitute exceptional circumstances or hardship.
The parties expressly agreed that the father would make generous child support payments as consideration for the mother agreeing to the division of assets under the binding financial agreement, which entailed her making no claim upon the father’s business interests. The two agreements were entered into as consideration for one another so that the resolution of the parties’ legal affairs was achieved as a package. Although the issue was not addressed by either party, that is a salient consideration in the exercise of the Court’s overall discretion. The mother expected to continue receiving child support of the agreed quantum and she may not have agreed to enter into the binding financial agreement if that were not so. If the child support payments are reduced as a consequence of the child support agreement now being set aside, the mother would be faced with the prospect of still being bound by the terms of the binding financial agreement. Self-evidently, that would sound in some degree of unfairness to the mother.

For those reasons I am not persuaded that the father has demonstrated the circumstances necessary to warrant the invocation of s 136(2)(d) of the Assessment Act in order to set aside the child support agreement.

Parenting orders

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon 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 properly be made (s 65D).
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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Although those principles govern all parenting cases, the scope of the parties’ residual dispute about parenting orders in this case was very narrow. The children’s best interests are therefore considered in the context of the narrowness of that dispute.

Children’s best interests – primary considerations

Both parties concede that the children have, and will benefit from retaining, meaningful relationships with both parents.
Neither party asserts that there is any need to protect the children from any physical or psychological harm from their subjection or exposure by the other party to any abuse, neglect, or family violence.

Children’s best interests – additional considerations

The children are still quite young. The eldest child is still not quite 11 years of age and the youngest is still only 5 years of age. They do not have the maturity to warrant the attribution of much, if any, weight to their views.
The Family Consultant reports that in late 2009 the children were all positive about extending their time with the father on alternate weekends from Sunday evening until Monday morning, notwithstanding their awareness of the parents’ sensitivities about the issue.[78]
[78] Family Consultant memorandum dated 17 November 2009, pars 4, 19, 21, 22
The children’s comments to the Family Consultant were flatly contradictory to the statements attributed to them by the mother at around that time. The mother alleged that the children were opposed to any expansion of the time.[79]
[79] Mother’s affidavit filed 1 October 2009, pars 151-152
In any event, the mother agreed to interim orders shortly afterwards on 21 December 2009 that expanded the children’s time with the father so that their time with him ended on alternate Monday mornings. In cross examination the mother conceded that that arrangement has worked well over the last 12 months, despite her misgivings,[80] and despite the statements she attributed to the children. Her concession is consistent with the father’s evidence.[81]
[80] Mother’s affidavit filed 1 October 2009, pars 150, 157-163
[81] Father’s affidavit filed 22 July 2010, par 77
In late 2009 the Family Consultant considered that the parents would have to demonstrate much more cooperation and civil communication before the time spent by the children with the father each alternate weekend could be expanded in the manner proposed by the father.[82] That opinion was offered when the mooted expansion of the children’s time with the father was for their alternate weekend time with him to conclude on Monday mornings in lieu of Sunday evenings. History has shown the Family Consultant’s apprehension to have been unjustified. The time was expanded successfully, despite no appreciable improvement in the level of the parties’ communication and cooperation.
[82] Family Consultant memorandum dated 17 November 2009, pars 5, 9
The current application of the father is to again expand the children’s time with him so that their time with him each alternate weekend concludes on Tuesday (and perhaps later, Wednesday) mornings, in lieu of Monday mornings. The eldest child is more circumspect about such an adjustment. She told the Family Consultant that it would “probably be OK” but that she was “not sure” and would consider a trial of that arrangement. She was troubled by the prospect of being rushed on another school morning, and not being permitted by the father to undertake her usual extra-curricular activities when the children stayed with him. The middle child was positive about extra time with the father, but unspecific about when it would be spent with him. The views of the youngest child were not canvassed at all.[83]
[83] Family Consultant memorandum dated 17 June 2010
Having regard to the Family Consultant’s assessment of the children, they are unlikely to be troubled by separation from the mother on one or perhaps two extra nights per fortnight during school terms. Any adverse effect of such a change would probably only be manifest in the change to their routine.
The issue of the father impeding the children’s participation in routine extra-curricular activities whilst they are in his care is not really contentious. The father admitted in cross examination that he rarely permitted the children to participate in their organised swimming on Friday evenings, and further, that he was opposed to the children participating in karate, either on Monday nights or at all. It made no difference to the father’s attitude that the mother participated in the karate training with the children.
It is clear that the father will not ordinarily willingly permit the children to participate in swimming club on Friday nights or karate classes on Monday nights if they are in his care. I expect that the father would ensure their attendance at those activities if the Court made an order requiring him to do so, but his compliance in those circumstances would likely be grudging. His reluctant compliance with Court orders would likely be evident to the children, and their enjoyment of the activities would likely be diminished as a consequence. That is a consideration of some weight in the determination of whether the time spent by the children with the father on alternate weekends is expanded beyond Monday mornings.
The children have positive relationships with extended members of both the maternal and paternal families. That is not an issue of significance.
Despite their personal animosity, the parties are both willing and able to facilitate and encourage close and continuing relationships between the children and the other parent. The parenting orders to which they have agreed are testament to that.
There is no practical difficulty or expense in the parties’ adherence to orders reflecting those proposed by either party, save for one exception in respect of telephone communication with the children. The orders about when the children communicate with the parties by telephone are influenced by when the children spend time with the father. It is therefore convenient to consider the communication orders following consideration of the orders providing for the time spent by the children with the father.
I am satisfied that the parties each have the capacity to provide for the children’s physical, emotional, and intellectual needs.
There is nothing about either party’s maturity, sex, lifestyle, or background that is influential in the outcome of these proceedings.
Neither party identifies themselves or the children as Indigenous Australian.
Other than their entrenched inability to interact with one another courteously and sensibly, of which the children are well aware, the parties each demonstrate a satisfactory attitude to the children and the responsibilities of parenthood. The parental conflict is liable to be emotionally harmful to the children. Even if the parties are cognisant of that consequence, they are presently powerless or unwilling to improve their communication.
But for an isolated incident between the father and a paternal uncle, there is no evidence of family violence. No party made any submission about family violence being an issue of significance.
There is no evidence of any current family violence order that applies to either of the parties or the children.
The Family Consultant was against the idea of trialling the orders proposed by the father about expansion of time spent by the children with him on alternate weekends.[84] I agree. The litigation needs to be concluded. Final orders are more likely to bring the parties’ dispute to an end. Keeping the litigation alive with further interim orders will probably only stimulate further disagreement.
[84] Family Consultant memorandum dated 17 June 2010, recommendation
The parties agree they should have equal shared parental responsibility for the children. An order is so made. In such circumstances the Act (s 65DAA) requires the Court to consider making “equal time” or “substantial and significant time” orders.
Neither party wants the children to spend equal time in their respective households. It would not be in the children’s best interests to do so if both of their parents are against it.
Each party proposes the children spend frequent time with the father. They simply disagree about how much. The time that the mother proposes the children spend with the father barely meets the definition of “substantial and significant time” found within the Act (s 65DAA(3)). Expansion of the children’s time with the father to include an extra school day or two each fortnight in school terms would undoubtedly meet the definition.
Whether the Court makes a “substantial and significant time” order depends upon whether such an order is both in the children’s best interests and reasonably practicable. Each aspect of that test must be considered (see MRR v GR at 465-466).
It is certainly reasonably practicable for the children’s time with the father on alternate weekends to be expanded so as to conclude on Tuesday or Wednesday morning in lieu of Monday morning. The parties agree it is practicable for the time to end on Monday morning already. No submission was, nor could be, made that any other practical consideration changes simply because the day changes.
The decision therefore turns upon consideration of the children’s best interests.
The enmity between the parties is not really influential in the determination about whether the children spend more time with the father. There is no increased interaction between the parties irrespective of whether the father returns the children to school on Monday, Tuesday, or Wednesday morning.
I reject the argument, based on the mother’s evidence,[85] that the children are inconvenienced by the father moving his residence, and hence further away from the children’s school, with the effect of protracting travel time and introducing a need for the children to rise earlier from bed to prepare themselves for school when with the father. I accept the evidence of the father that the travel time is extended by about two minutes and makes no overall difference.
[85] Mother’s affidavit filed 21 July 2010, pars 67-69
If the children spend more time with the father each alternate weekend, that time will be spent on school days – being a Monday, and perhaps Tuesday. The father will be at work and the children will be at school. The extra time spent with the father will be confined to the evening. The children presently prepare for bed at 7.00 pm and are in bed by 7.30 pm. On the Monday evenings that the children would spend time with the father they are due to attend their karate classes. Essentially, the children will therefore have only a few extra hours with the father each fortnight, and only during school terms. That may be of vital importance to the father, but it is not likely to be so to the children. That is not to say that the children would not enjoy their extra time with the father. They likely would, but their enjoyment is likely to be tarnished by his refusal to permit them to participate in karate classes on Monday evenings.
It is advantageous for the children to be permitted to participate in routine activities which they enjoy. Unsurprisingly, the father conceded that in cross examination. On balance, I conclude on the evidence that the children’s best interests are served by them being able to maintain their routine with the mother during school weeks. That advantage is not outweighed by the enjoyment the children would derive from spending a few extra hours each fortnight with the father at the expense of their routine enjoyment of extra-curricular activities. The father could not adequately explain the juxtaposition between that admitted advantage and his admission that he declined to take the children to swimming club on Friday nights and that he did not want them to participate in the karate classes, which they enjoyed with the mother, on Monday nights.
For those reasons, the time spent by the children with the father on alternate weekends during school terms will conclude on Monday mornings, as was agreed between the parties in December 2009. The time is extended to Tuesday mornings in the event of a public holiday falling on Monday, albeit perhaps at the occasional expense of their attendance at karate classes, so as to retain consistency about the father’s return of the children to school following their weekends with him.
The father maintained that there is a practical difficulty in him telephoning the children on alternate Tuesdays between 6.00 and 6.30 pm, as presently ordered, because that time frame clashes with a regular corporate board meeting he attends. There was no difficulty in him telephoning on any other evening of the week after 6.30 pm. The father simply said that neither he nor the mother should be interrupted by taking telephone calls from the other between 5.00 and 6.30 pm. The father expressed his desire not to telephone the children on weekends and he did not propose telephoning them on Wednesday evenings. He wanted to retain the arrangement of telephone communication on Tuesday and Thursday evenings, but push back the time slot.
The mother asserted that there is a practical difficulty in the father telephoning the children on any evening after 7.00 pm, because the children are usually fed by the mother at 6:30pm, after their existing telephone communication with the father is concluded, and then readied for bed at 7:00pm. The children are in bed by 7:30pm. Otherwise, the children attend karate on Monday nights and swimming on Friday nights.
Although Wednesday nights are available for telephone communication, there is little point served in the children speaking with the father by telephone consecutively on Wednesday and Thursday nights.
Each party conceded that the orders about telephone communication, upon which they agreed in December 2009, have worked well. It is only the clash of the father’s corporate commitment on alternate Tuesday evenings that causes a complication. It does not suit the father to telephone before 6:30pm in the evening and it does not suit the mother and children for the father to telephone later than 7:00pm in the evening.
The father’s application is that he be able to telephone the children between 6.30 and 7.30 pm on Tuesdays. Although the mother knows the children begin preparing for bed at 7.00 pm, she proposes that the children be available until 7.00 pm to receive telephone calls from her when they are with the father, and that the father be able to call the children at her home up until that time. The parties’ proposals and concessions, therefore, mutually admit of telephone communication occurring in the period between 6.30 and 7.00 pm on Tuesday evenings.
The only realistic solution is for the father and children to communicate within that half-hour period on Tuesday evenings or to forgo telephone communication with one another on alternate Tuesday evenings when the father attends his corporate meetings. Otherwise, the orders for telephone communication will remain as was agreed between the parties in December 2009.
The mother did not articulate why the children would be benefitted by calling her on weekends, as she proposed in her Response filed in October 2009,[86] in lieu of on Tuesdays and Thursdays, to which arrangement she agreed in December 2009.
[86] Response, Order 9
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 February 2011.

Associate:

Date: 17 February 2011

Limited Issues Report dated 17 November 2009, par 5 Father’s affidavit filed 22 July 2010, par 156 Father’s affidavit filed 29 October 2010, par 21 Father’s affidavit filed 29 October 2010, par 25 Father’s affidavit filed 29 October 2010, pars 21(b), 22 Father’s affidavit filed 29 October 2010, par 27