BABBIT & BABBIT
[2012] FMCAfam 1453
•21 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABBIT & BABBIT | [2012] FMCAfam 1453 |
| FAMILY LAW – Interim parenting – interim property. CHILD SUPPORT – Application for departure from administrative assessment – restraining orders. |
| Child Support (Assessment) Act 1989, ss.79, 80, 116(1)(b), 117(2)(c) Family Law Act 1975, Part VII, s.60CC |
| Goode & Goode [2006] FamCA 1346 Strahan & Strahan [2007] FamCA 139 |
| Applicant: | MS BABBIT |
| Respondent: | MR BABBIT |
| File Number: | SYC 4840 of 2012 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knox |
| Solicitors for the Applicant: | Shipton & Associates Solicitors |
| Counsel for the Respondent: | Mr O’Brien |
| Solicitors for the Respondent: | Craddock Murray Neumann |
ORDERS
CHILDREN
That the children of the marriage, [X] born [in] 1998, [Y] born [in] 2003 and [Z] born [in] 2007, live with the Mother.
That the Mother and the Father have equal shared parental responsibility for the long term care, welfare and development of the children.
That the Mother have sole parental responsibility for the day-to-day care, welfare and development of the children when the children are in her care.
That the Father have sole parental responsibility for the day-to-day care, welfare and development of the children when the children are in his care.
That whilst the Father is employed as a [occupation omitted] working on/off dates off North Western Australia and in Sydney the children spend time during school term time with the Father when he is home on leave from [omitted] as follows:
(a)On first and last weekends of his 3 week leave from after school on Thursday (or 3 pm if not a school day) to 6 pm on Monday;
(b)On the first, third, fifth and sixth weekends of his 6 week leave from after school on Thursday (or 3 pm if not a school day) to 6 pm on Monday;
(c)On any Friday afternoon and evening during the Father’s leave when the children are otherwise not spending time with him under the preceding two orders from after school (or 3 pm if not a school day) to 9.00 am on the following Saturday morning;
(d)In the event of an activity such as an extra-curricular activity, therapy session, sporting, scouting or social event involving the children occurring during the time when the children are spending time with their Father, the Father shall arrange for the children to attend that activity;
(e)That the Father shall supervise and assist the children in carrying out homework and project activities assigned to them to carry out during the time the children spend with the Father.
That whilst the Father is employed as a [occupation omitted] working on/off dates off North Western Australia and in Sydney during school holiday time the Father shall spend time with the children when he is home on leave from [omitted] as agreed between the parties and, in the absence of agreement, as follows:
(a)From the 9am on the first Saturday of the school holidays on which the father is home on leave to 9 am on the second Saturday of the school holidays on which the father is home on leave;
(b)From 9 am on the third Saturday of the school holidays on which the father is home on leave to 9 am on the fourth Saturday of the school holidays on which the father is home on leave;
(c)From 9 am on the fifth Saturday of the school holidays on which the father is home on leave to 9 am on the sixth Saturday of the school holidays on which the father is home on leave;
(d)The school term time normally spend with the Father shall be overridden during the school holiday period and resume at end of the school holidays.
That, in the event that the child [Y] expresses a strong desire not to spend time with his father or refuses to go in accordance with these Orders, he shall not be forced to spend such time and, in this regard, it is noted that the Mother undertakes to use her best endeavours to encourage [Y] to spend time with his father in accordance with these Orders.
Notwithstanding any other Order, that the Father spend time with the children during the 2012 Christmas period if he is home on leave from [omitted]:
(a)from 6pm on Friday 21 December to 5pm on Monday 24 December 2012;
(b)1pm on Christmas Day, Tuesday 25 December, to 5 pm on Wednesday 26 December 2012;
(c)6pm on Monday 31 December 2012 to 6pm on Monday 7 January 2013;
(d)6 pm on Sunday 13 January to 6pm on Sunday 20 January 2013;
(e)6pm on Friday 25 January to 6pm on Tuesday 29 January 2013.
Notwithstanding any other Order, that the Mother spend time with the children during the 2012 Christmas period;
(a)from 5pm on Monday 24 December to 1pm on Christmas Day, Tuesday 25 December 2012;
(b)from 5pm on Wednesday 26 December to 6pm on Monday 31 December 2012;
(c)from 6pm on Monday 7 January to 6pm on Sunday 13 January;
(d)from 6pm on Sunday 20 January to 6pm on Friday 25 January.
Notwithstanding any other Order, that the children spend time with the Mother on Mother’s Day and the Mother’s birthday from 9.30 am to 8.00 pm (and they shall attend their usual school and kindergarten during that period).
Notwithstanding any other Order and if the Father is on leave from [omitted], that the children spend time with the Father on Father’s Day and the Father’s birthday from 9.30 am to 8.00 pm (and they shall attend their usual school and kindergarten during that period).
Notwithstanding any other Order, that the children spend time with the Mother on each of the children’s birthdays from after school to 5.30 pm if on a school day and from 9.30 am to 2.00 pm if on a weekend.
Notwithstanding any other Order and if the Father is on leave from [omitted], that the children spend time with the Father on each of the children’s birthdays from 5.30 pm to 8.00 pm if on a school day and from 2.00 pm to 8.00 pm if on a weekend.
That the arrangements for all periods of time spent with the Father are that the Mother shall take the children to a location nominated in writing by the Father which shall be on the Northern Beaches of Sydney at the commencement of the agreed period of time to be spent with the Father and the Father shall return the children to the Mother’s residence at the conclusion of such agreed time period except on any Friday overnight time on a day which is a school day when the Father shall collect the children directly from school;
That each party will take all reasonable steps to ensure the health, safety and well-being of the children when they are in his or her care including, but not limited to:
(a)Ensure that the children take prescribed medication in accordance with the prescription and that such medication is returned with the children;
(b)Ensuring that the children wear safety helmets and other appropriate safety equipment when engaging in activities;
(c)Ensuring that the children do not engage in pistol or rifle shooting other than in the presence of a qualified shooting instructor;
(d)Notifying the other party as soon as possible of any medical emergency, urgent medical treatment, serious injury or illness suffered by any of the children whilst in that party’s care;
(e)Except in an emergency, notifying the other party 7 days in advance of any initial medical, dental or other healthcare appointments and the purpose of such initial appointments by SMS text message or email.
(f)Maintain a medical kit including chewable children’s Panadol (for [Z] if required), adult Nurofen (for [Y] to take in the initial stages of croup if required) and prescription Predmix with measuring syringe (to be kept refrigerated for [Y] to take if croup worsens).
That the Father shall provide to the Mother forthwith and all times a printout of his work schedule for the next twelve months.
That the children shall have communication:
(a)By telephone with each party whilst they are in the care of the other party when the children request and as agreed between the parties and, failing agreement, between 5.30 pm and 7.00 pm AEST;
(b)By unlimited electronic contact with each party whilst they are in the care of the other party to the absent party’s email address or the child’s or children’s own Facebook or other electronic media address;
(c)Over the Christmas Eve to Boxing Day period and on the parties’ and children’s birthdays the children shall have telephone and/or other electronic contact/communication with each party whilst they are in the care of the other party at all reasonable times between 9.00 am and 7.00 pm.
(d)Such communication shall take place by calling the other party’s mobile phone, the other party’s residential landline or other number notified in writing by the other party.
That the parties shall be at liberty to attend all school functions and sports activities and extra-curricular activities in which the children are involved and to which parents are normally invited.
Neither party shall enrol the children in any extra-curricular or sporting activities (other than those activities in which they are currently participating) without the agreement of the other party.
The mother shall retain for safekeeping the children’s passports pending further order of this Court.
Neither party shall denigrate the other to or in the presence of the children and take all reasonable steps to promptly remove the children from hearing any denigration of either party by another.
Neither party shall discuss the marriage, its breakdown or court proceedings with or in the presence of the children.
PROPERTY
That the Wife shall be entitled to the exclusive use and occupation of the property with the children until further order of this Court subject to the following conditions:
(a)The Wife shall maintain the property in a clean and tidy condition.
(b)That the Husband shall pay all mortgage instalments at the minimum rate due including any arrears currently outstanding, all contents and building insurance premiums, all council and water rates, electricity and gas accounts, heating fuel expenses, landline/mobile telephone of both parties, internet expenses and all expenses relating to the ongoing repair and maintenance of the property and in the event of the Husband making default in repayment of any amount due whereby the Wife is called upon or required to pay or does in fact pay any such expense or expenses the Wife shall be entitled to a first charge over the property to the extent of any such expense or expenses paid by the Wife.
(c)Neither party shall use the property for security for further borrowings without the consent in writing of the other party.
(d)Neither party shall engage in any dealing which increases the indebtedness secured by an encumbrance presently affecting the property or any part thereof.
IT IS NOTED that publication of this judgment under the pseudonym Babbit & Babbit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4840 of 2012
| MS BABBIT |
Applicant
And
| MR BABBIT |
Respondent
REASONS FOR JUDGMENT
The applicant mother is a [occupation omitted] living in the former matrimonial home in [omitted]. She is 40 years old. The respondent husband is a [occupation omitted]. Where he is living is unclear to me except that at the moment he is probably working [away]. He is 49 years old. The parents commenced cohabitation in 1995, married in 1997, and separated in 2012. Their relationship lasted about 17 years. There are 3 children, all currently living with their mother: [X], who is 14; [Y], who is 9; and [Z], who is 5. On 19 September 2012, the parents entered into consent orders, the terms of which I will incorporate into these oral reasons. On 4 December, the interim hearing had to be adjourned as the father had not complied with directions as to filing of evidence. The matter came back before me on 20 December 2012.
The applicant mother sought orders as per the document entitled Interim Orders sought by Mother, 20 December 2012. The issues raised there are interim parenting orders, interim property, child support, an application for departure from administrative assessment, and various restraining orders. The applicant mother’s case is supported by her two affidavits, sworn 27 November and 4 December 2012. Ms Knox appeared for the mother. The respondent father sought orders as per the document entitled Father’s Proposed Minute of Order annexed to his case information document. He seeks orders on an interim basis for property and parenting. He resists the mother’s application. I incorporate the orders that he seeks into these, my oral reasons. His application was supported by a number of affidavits that are referred to in the case information document, and again I will incorporate that list into these oral reasons. Mr O’Brien appeared for the father, it would seem, on relatively short notice. Each party filed a financial statement.
There is some common ground in the evidence. The mother has suffered in the past, and appears to continue to suffer, from bouts of depression. The child [Y] suffers from a number of health issues, including Asperger’s disorder. Also, for most of the marriage, the father’s job has taken him away from home. At the moment he describes this as being away at [omitted] for five months of the year in three-week stints. It seems like he is three weeks at [omitted], three weeks on leave, three weeks at [omitted], and then six weeks on leave. It is, apparently, a rotating roster. It is common ground, further, that the husband is paying child support as assessed, which is about $618 per week, as well as a mortgage of $660 per week.
There are also a number of other matters that need to be noted. Firstly, in evidence, there were two child dispute conference memoranda, including one child‑inclusive conference. The first one is dated 24 September; the second one, 15 November 2012. I incorporate the contents of those into these, my oral reasons. I further note that each parent makes allegations of family violence against the other, but the parenting orders that they propose do not appear to reflect any concerns about family violence or of the other’s parenting capacity. Accordingly, in these reasons I will make no further reference to family violence.
The next thing to note is that I am by no means clear from the father’s evidence as to what his residential arrangements are. Of course, this is highly relevant to the parenting issues. I note what he says at paragraph 121 of his affidavit of 19 September 2012. He deposes that at present “I am without a place to live”. At paragraph 154, he explains that he cannot live at his parents’ home or at the home of friends or relatives as there is not enough room for the children when they spend time with him. At paragraph 155, he raises the possibility of shared accommodation with his brother, though he notes that the tenure of this would be uncertain. At paragraph 156, he says he cannot afford to rent as well as pay the outgoings and the mortgage on the home. His later affidavit of 3 December advances my knowledge about this no further. I record both my surprise and disappointment that I am asked to consider the father’s proposals for parenting orders in circumstances where, quite frankly, I have no idea where they will be when they stay with him.
I further note that the father’s financial statement sworn 18 September is, quite frankly, unhelpful. I made a comment to this effect on 4 December. Again, I am both surprised and disappointed that no attempt was made to provide me with some evidence that assists my understanding of it. The biggest problem is item N of the statement which, with respect, simply does not make sense. The father is living away from home, at his employer’s expense, for five months of the year. At the time he swore the document, the children were not in his care. The document might be an attempt to convey the expenses he says he incurs for the benefit of the family, but that cannot provide a satisfactory explanation of his own expenses.
The other major concern that I have in the financial statement is at item 30, where he claims that he is paying $800 per week as credit card payments. There must be an inference that this relates, at least in part, to the expenditure that he recites at item N of the financial statement. The financial statement is, of course, quite important in this case, both as it relates to property issues and as it relates to the orders for child support that he resists. It is his evidence advanced to the Court as being accurate, truthful and reliable, and the basis on which the Court can make a decision.
Now, as it turns out, the criticism I make makes little difference in some respects. What I do record is that the amount of time that was spent preparing these reasons for judgment was easily doubled because of the level of scrutiny that had to be undertaken of the husband’s financial circumstances in a case where had he done what he was supposed to do, that would not have been the case. In any event, I also acknowledge the difficulties that the husband and his lawyers must have in giving instructions and preparing documents.
I turn firstly to consider the parenting issues. The applicable law is contained in Part VII of the Family Law Act, and I will incorporate into these oral reasons a number of the relevant provisions. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides a template for approaching these cases, and again I will incorporate into these, my oral reasons, a number of paragraphs from the Full Court’s decision.
The parenting issues in this case face a number of complexities. The first thing is that the father’s roster will make a consistent post‑separation parenting regime difficult to implement, particularly given the changes in both parents’ lives brought about by separation. The uncertainty about the father’s residential accommodation is another significant challenge. Moreover, even the father acknowledges that [Y]’s Asperger’s makes it difficult for him to adjust to new situations. These are formidable challenges. There are some positives though, which are evident from the two child dispute conference memoranda. For example, the children raise no safety concerns about the parents, and certainly [X] and [Y] want to spend more time with their father.
It is informative to compare the two proposals. The mother clearly attempts to consider the father’s roster and provides regular and constant, substantial and significant time having regard to that roster. It is hard to establish a pattern that is predictable, but the mother’s proposal at least tries to achieve consistency. On her proposal, if the father is away from the children for extended periods, it is because he is working [away] because when he is home, his time with the children, on her proposal, is not characterised by large gaps of time in between visits. By contrast, the father’s proposal sees the children away from the mother for periods up to nine days, something that the children have not done before, in circumstances where I am unsure how [Y] will cope with this and where I do not even know where the children will be living. His proposal is not appropriate.
I intend to make orders in accordance with the mother’s proposal, which on balance, and having regard to the factors referred to in section 60CC, I find to be more child-focused. To the extent that the children may have expressed a view to spend more time with their father, it is simply not practical on the evidence before the Court at the moment. I also find that the mother’s proposal for school holidays and special days seems appropriate. I do, however, signal this to the father: that I am prepared to revisit the issue of parenting arrangements in the future, certainly once a family report is available, but possibly even earlier if some of the gaps in the evidence that I have identified have, in fact, been filled.
I turn now to consider the mother’s child support application. I deal with this at this point because it has an impact on the property issues raised by both parties. Despite the wording of the mother’s order, it is, in effect, an application for departure from administrative assessment under s.117(2)(c) of the Child Support (Assessment) Act, and I incorporate into these, my oral reasons, the wording of that statutory provision. I am satisfied that s.116(1)(b) applies, that is, that in the circumstances of this case, where there is financial information already available before the Court and where the facts suggest that there are some special needs of the children, there are, therefore, special circumstances under s.116 that would warrant this matter being dealt with without the mother having to pursue the usual administrative review process.
Turning to s.117(2), I am satisfied that there are special circumstances in this case that arise out of, firstly, the nature of the father’s employment and the additional burdens that this places on the mother, both financially and non-financially; secondly, the mother’s limited working capacity and health issues; and thirdly, the very special needs arising out of [Y]’s diagnosis of Asperger’s, which includes literary assistance, occupational therapy, special classes in martial arts, attendance on a child psychologist, attendance on a urologist and attendance on a developmental paediatrician. In these special circumstances, the existing administrative assessment issued on 4 October may result in an unjust and inequitable determination of the level of financial support to be provided. I say may because, as it turns out, the actual application of s.117 does not lead to a result that changes the administrative assessment. Indeed, the real issue in this case is quantifying the needs of the mother and the capacity of the father.
The mother quantifies her claim in the annexure to the interim orders sought by her, which includes a detailed breakdown of the expenses she asks the father to meet, and I incorporate into these, my oral reasons, the said annexure. This is an interesting document, and I will start by commenting on that part of the document that refers to the $863 per week described as “bills to be paid direct for household” and which is, in effect, the order that the mother asks me to make in order 23(b), under the heading Property Orders. The interesting thing about this list of expenses is that the nature of the expenses is such that they, in effect, provide a roof over the heads of the children. The concern I have with this is that the quantification of this includes the mother’s own share of these expenses, which ought not automatically, at least, be characterised as child support, but is probably better characterised as spousal support.
If one refers to part N of her financial statement and, for example, looks at items such as gas, which is $14, but only $10 of which is attributable to the children, and telephone/internet, etcetera, which is $42, but only $30 is attributable to the children, one perceives that only about 75 per cent of the $863, in fact, is attributable to the children. Now, this becomes significant in due course, but what this means is that of the $863 per week that the wife wants the husband to pay, $647, or about 75 per cent, of that amount is attributable to the children and the balance is attributable to the mother. The evidence suggests, as muddy as it is, that most or all of these expenses have, in fact, been paid by the father, either continuously since separation or for a good period thereof.
Now, the wife’s claim is for $3,956 per month by way of child support, or $913 per week, and it is important to note that she claims this in addition to the payment that she seeks at 23(b), namely, the payment of $863 that I have just discussed. The wife contends that the expenses contained within the sum of $913 per week are entirely attributable to the children. I note that it is possible, as a matter of fact, that the husband is already paying some of these. It is clear that some of these expenses are clearly attributable to [Y]’s special needs.
In theory, the father is not obliged by law to support the children exclusively by himself and to meet 100 per cent of their needs. The difficulty, of course, in this case is that the mother’s income is so limited, that whatever she earns is used by her to minimally support herself. This does result, for all practical purposes, with the father becoming almost solely responsible for meeting the needs of the children subject to his capacity. When one looks at the needs as articulated and as calculated to be $913 per week, I must say I could not see any excess or any unreasonable expenditure.
The real focus here then is on the husband’s capacity to pay. If I make the order that the wife seeks at 23(b) of her orders, howsoever that might be characterised, and I will come back to that in a moment, the father will be paying each week $913 child support and a further $863, of which $647 is exclusively referable to the children. In other words, each week he will be paying $1,560 for the benefit of the children. His current assessment is $619 per week. As I mentioned, he is already paying other expenses. Does he have the capacity to meet the increased order that the mother seeks as well as to make the payments that the mother seeks at order 23(b)? He says he does not; the wife says that he does.
As I have mentioned, the financial statement of the husband was not of much assistance. Doing the best I can, I would probably, and I do, in fact, disallow item 30, being the weekly credit card payments for the reasons that I have previously articulated. In item N, he claims personal expenses of $586 per week, and even allowing for the fact that he only lives at home for seven months of the year, a close examination of these expenses indicates that most are not unreasonable. The $130 that he claims as other necessary commitments are poorly articulated, seem to have been duplicated, and in any event, seem excessive and unnecessary, so I will disallow these. That means I would reduce his expenses by a further $130 per week. By reducing his weekly expenses by a total of $930 per week, his expenses become $3,934 per week, thus suggesting a deficit of $2 per week.
It is important to note that he is not paying for accommodation at this stage. I consider this to be a reasonable expense that I must account for. Indeed, Ms Knox very helpfully submitted and provided documents to the Court, without objection, that reasonable accommodation would be available to the father, and I note, indeed, to the mother, at a weekly rental of about $700 per week, based on information provided by realestate.com.au. Based on these documents, it would seem that he could get a three to four-bedroom home in that regard. What is unclear to me, based on the unsatisfactory nature of his financial statement, is what exactly he is already paying. It is clear he is paying the mortgage, he is paying $660 per week; rates and levies are $59 per week; and other unspecified expenses.
The wife asserts in her annexure that if the husband continues to pay $863 per week as what she describes as “bills paid direct to the household”, and again it should be remembered that $647 of this is attributable to the children, she asserts that he can still pay a further $913 per week child support and have $805 per week available to meet his living expenses. This is simply the result of my reading of the annexure to the interim orders sought by the wife. The difficulty for the mother is that her own evidence is that it would cost him in the vicinity of $700 per week to get accommodation suitable for the father and the children. When this is taken into account, what the wife is seeking is simply not just and equitable, even on her own figures.
If I make order 23(a) as proposed by the mother, howsoever that might be characterised, the cost to the father is $863 per week and the benefit to the children out of that is $647 per week. This payment has the advantage of preserving the property as well as providing stability for the children during a turbulent time in their life, and this is something that the mother’s case emphasised in her submissions. I have referred a number of times to the characterisation of order 23(a). I must say even though it comes under the heading of Property, I am not sure whether it is an order under ss.79 and 80 or whether it is meant to be some form of injunction to preserve property or whether, in fact, it is meant to be an order for spousal maintenance. In the end result, I am not sure on the facts of this case that it makes any difference.
I am prepared, in fact, to treat it at face value as an interim property order, which under s.80, of course, can be paid in many different ways, including in the manner specified at 23(b), but I emphasise that I think the same result would be achieved using the alternate bases under the Act. If I make the order at 23(b), I cannot order $913 per week because that allows the father no money on which to live, and I cannot assume that his proposal referring to his brother is something that will eventuate and, even if it does, that it will continue indefinitely. Another way of expressing this result is to say that, even accepting the mother’s own contended figures, I do not accept on her schedule that $379 per week is enough for the father to reaccommodate himself, especially when the evidence before the court is that it would cost about $700 per week. It is no answer for the mother to say, “He can share with his brother,” especially when it is the mother who raises concerns about the appropriateness of the brother in a household where the children will spend time, even on her proposal.
On the mother’s own figures, he would have $379 left per week with which to accommodate himself. I’m prepared to allow him $700 per week for the accommodation. That means he will need an extra $371 per week. The difference between the child support that is paid and the amount that is sought is $294 per week. Clearly, the husband does not have this income. I have, in those circumstances, no choice but to dismiss the application for child support departure. I make this observation by making order 23(b), as I intend to do, the husband is paying $863 per week, of which $647 benefits the children. He is already paying $619 per week for the children. This means, in effect, he is to pay $1,266 per week for the benefit of his children, which is about 50 per cent of his after-tax income.
Out of the balance per week, it is noted that the wife is getting the benefit of $216 per week, namely $863 minus $647, in the sense that bills are paid directly which benefit her and not just the children. Separation brings about substantial changes to families. In this case, what was possible before separation in a financial sense is not possible on any reasonable basis after separation has taken place.
Accordingly, I make the parenting orders sought by the mother. I make the property orders sought by the mother. I dismiss the child support orders sought by the mother. I decline to make the orders entitled “Restraint” in circumstances where I was not addressed in relation to the same, where the father spends so much time away from home and, in any event, where there are alternatives available to protect the mother. There appear to be no issues about the miscellaneous orders, so I will make those orders.
The remaining issue, of course, is the father’s application which is, in effect, for interim property orders requiring the sale of the property. Having regard to all that I have said above, the husband’s case does not get to the metaphorical first base. He demonstrates no compelling circumstances. The detailed financial analysis that had to be undertaken above demonstrates that even on the more contemporary Strahan & Strahan test, there is no evidence to suggest that it is appropriate to exercise the power to order interim sale, having regard to the absence of any financial compulsion and, in any event, the special needs of this family. Accordingly, I dismiss the father’s application for interim property orders.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 18 February 2013
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