BARSON & BARSON

[2015] FamCA 413

FAMILY COURT OF AUSTRALIA

BARSON & BARSON [2015] FamCA 413

FAMILY LAW – CHILDREN – Interim Parenting – Where the father sought a number of interim parenting variation orders – Where the Court found most issues did not warrant a change in the previous parenting arrangement.

FAMILY LAW – PROPERTY – Child support departure and spousal maintenance – Consideration of s 116 of the Child Support Assessment Act 1989 – Where the Court found it is just and equitable to order a child support departure in the terms sought by the wife – Where the Court found it is appropriate to make an order for spousal maintenance in favour of the wife. 

Child Support Assessment Act 1989 s 116, 117
Family Law Act 1975 s 72, 74, 75, 79, 80

APPLICANT: Mr Barson

RESPONDENT: Ms Barson

INDEPENDENT CHILDREN’S LAWYER: Ms Power

FILE NUMBER: SYC 5841 of 2013

DATE DELIVERED: 7 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 7 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Miller

SOLICITOR FOR THE APPLICANT: Pearson Emerson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cummings

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER Mr Cummings

Orders

1. Until further order each of the parties is restrained by injunction from:

1.1Assaulting, molesting or harassing the other party or his/her partner; and

1.2Sending abusive, derogatory, harassing or offensive messages to the other party by email, text message, or by any other electronic means.

1. Each of the parties be restrained until further order from arranging activities for the children or any of them which would to any significant extent take place during the times the children are to be living with the other parent, without the prior written consent of the other parent.

1. Until further order, the wife be restrained from consuming alcohol to excess, that is she is not to exceed the prescribed content of alcohol at 0.05 per cent, while the children are living with her or spending time with her and for the period of 12 hours prior to each such time.

1. By consent the parties do all acts and things and sign all documents necessary to facilitate the children attending counselling at CatholicCare Suburb B and that the children shall attend such counselling at the frequency and duration recommended by the counsellor.

1. By consent, the wife provide to the solicitors for the husband the documents referred to in the letters (Exhibit 2 dated 7 April 2015) subject to them being within the wife’s possession or control and subject to any claim for privilege, within 28 days from today’s date.

2. By consent the husband’s solicitors provide to the wife’s solicitors within seven days:

6.1Nominations of three single experts with the necessary qualifications to be instructed to value:

6.1.1the boats;

6.1.2the cattle and farming equipment.

6.2Letters of instruction to each of the valuers nominated by the wife as set out in the correspondence from Barkus Doolan to Pearson Emerson Family Lawyers dated 4 December 2014.

1. By consent, the husband pay as and when they fall due all costs associated with the appointment of the single expert accountant in the first instance and the trial judge to determine in what proportion those costs shall be paid by the wife upon receipt of her trial property settlement.

1. Within 28 days the husband provide to the wife’s solicitors the following:

8.1A schedule particularising all of the amounts and dates of payment of expenses and/or monies paid by the husband, or at his direction, in any amount exceeding $1,000 for the benefit of:

8.1.1All supporting documents referrable to the payments made by the husband to the persons identified in 13.1.1, 13,1,2 and 13.1.3 of Exhibit 3 (dated 7 April 2015).

8.1.2The costs, including supporting documentation, of the husband’s wedding to his wife Ms C;

8.1.3The costs, including supporting documentation, of the husband’s honeymoon;

8.1.4All cheque butts or cheque books operated by the husband on accounts in his name either solely or jointly with any third party or accounts in which he has authority to operate including but not limited to the cheque book linked to the NAB account number 03508 5577 for the period 1 January 2011 to date.

1. Subpoenas issued to Lyons Wood and to Barkus Doolan are adjourned to the subpoena list at 10.30 on 22 April 2015.

1. Any claim for privilege on behalf of the wife in relation to either subpoena is to be supported by an affidavit filed and served by 17 April 2015.

1. Leave is granted to the parties to inspect documents produced to the Court in response to paragraph 1 of the subpoena to Barkus Doolan.

1. Leave is granted to the solicitors for the wife to inspect documents produced to the Court in response to the subpoena most recently served on Telstra and in the event that there is no objection that notice be given by those solicitors to the solicitors for the husband that they too have leave to inspect.

1. Leave is granted to the parties to inspect documents produced to the Court in response to subpoena by the Department of Roads & Maritime Services.

1. By way of departure until further order from the administrative assessment of child support for the children of the marriage issued on 22 May 2014 for the period 19 May 2014 to 8 July 2015, and any administrative assessment issued thereafter, the husband pay:

14.1By way of periodic child support, the amount of $500 per child per week payable by monthly instalments, the first payment to be made on the 1^st day of the first calendar month after the making of this Order and thereafter by the 1^st day of each calendar month until the happening of a child support terminating event in respect of each of the three children, save that in the event of a child turning 18 years of age during Year 12 of her/his secondary education then on 31 December of that year;

14.2By way of non-periodic child support as follows for each of the three children:

14.2.1100 per cent of the private school fees and regular charges invoiced by the schools including but not limited to, compulsory school related extracurricular activities (artistic, musical and sporting) and excursions;

14.2.2Reasonable no-school related extra-curricular activities including but not limited to expenses associated with:

(a)The children’s horse riding (including but not limited to agistment fees, lessons, vet expenses, carrier costs and any other horse riding expenses); and

(b)Expenses associated with D’s sailing boat;

14.2.3The children’s private health insurance premiums at their current level’

14.2.4The children’s gap medical expenses and optical, physiotherapy, dental, and orthodontic expenses.

1. The periodic child support payments referred to in paragraph 14.1 of these Orders are to be adjusted on 1^st July each year (“the review date”) commencing 1 July 2015 by multiplying the child support payable on the review date by the fraction N/B where “B” is the Consumer Index for Sydney (All Groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ended on the day 12 months prior to the review date (namely 30 June) and “N” is the CPI in respect of the quarter ending on the day immediately preceding the review date.

1. The child support payable by the husband pursuant to 14 and 15 of these Orders:

16.1Is to be credited against the husband’s liability under any administrative assessment of child support payable by the husband to the wife for the period until the happening of a child support terminating event in respect of each of the children;

16.2Is to count for 100 per cent of the annual rate of child support payable by the husband under any administrative assessment of child support payable by the husband to the wife for the period until the happening of a child support terminating event in respect of each of the children.

1. Until further order the husband pay to the wife an amount of $4,940 per calendar month by way of spouse maintenance into the bank account nominated by her, payable by monthly instalments on the 1^st day of the first calendar month after the making of this Order.

1. The spouse maintenance payments referred to in Order 17 of these Orders are to be adjusted on 1^st July each year (“the review date”) commencing 1 July 2015 by multiplying spouse maintenance payable on the review date by the fraction N/B where “B” is the Consumer Index for Sydney (All Groups) published by the Australian Bureau Statistics (“CPI”) in respect of the quarter year ended on the day 12 months prior to the review date (namely 30 June) and “N” is the CPI in respect of the quarter ending on the day immediately preceding the review date.

1. Until further order the husband pay as and when they fall due, all outgoings for E Street, Suburb F NSW including, but not limited to:

19.1Gas;

19.2Electricity;

19.3Fuel;

19.4Counsel rates;

19.5Water rates and usage;

19.6Cleaner;

19.7Gardener;

19.8Security system;

19.9Contents and building insurance premiums;

19.10Maintenance expenses; and

19.11Pool cleaner and pool products.

1. The husband pay the cost of house repairs in respect of the former matrimonial home as soon as practicable after the provision to him by the wife of an invoice in respect of the repairs.

1. The husband pay to the solicitor for the wife $400,000 by way of interim property settlement and that payment is to be made as soon as practicable after advice is received from the solicitor for the wife that the balance of the trust account of the solicitor for the wife is reduced below $50,000, provided that in any event the payment is not required prior to 10 July 2015.

1. Otherwise the applications for orders set out in the husband’s Case Outline and the wife’s Case Outline (Exhibit 3) are dismissed.

1. The costs of and incidental to the proceedings today are reserved.

1. Leave is granted to the parties and the Independent Children’s Lawyer to restore the proceedings to the list on giving seven days’ notice to the Court and to each other particularly in relation to fixing trial dates and making trial directions.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 5841 of 2013

Mr Barson

Applicant

And

Ms Barson

Respondent

REASONS FOR JUDGMENT

1. A number of interim parenting variation orders are sought by the father.  Courts are not supposed to make orders for no reasons.  The issues raised are virtually non-justiciable issues.  The parents enjoy a very poor relationship and something of the reason for orders made will appear from the interplay between bench and bar.  Orders are to be in the best interests of children.  The legislation identifies the relevant criteria in s 60CC.

2. As I have indicated to the parties, I am anxious about entering into the minutiae of their relationship and their interaction in respect of the children.  The father has asked for orders that change the communication permitted between the parents and the children when the children are in the household of the other parent.  Those matters are governed, at the moment, by some orders made on 10 January 2014.

3. The father has asked for a reduction of the period during each afternoon when there is a positive obligation on the parents to facilitate telephone communication between the children and the other parent.  He also seeks reciprocal injunctions to restrain certain communication outside that period, and he seeks orders to restrain certain other conduct.

4. I do not propose to make any changes to the orders the parties agreed to in January last year about the provision of equipment; about facilitating communication between 4.00 pm and 8.00 pm each day, facilitating the children communicating with each other as agreed, and ensuring that there was equipment to enable parents and children to maintain telephone contact.  They were orders agreed.  In my view, although there have been some problems, the circumstances to not warrant a change in those arrangement.

5. As to changeovers, the father wanted to change the current arrangement, which is, where school is not an appropriate venue for handover of the children, the parties have been using a café.  He says he would like that to be made the gate of the home of the receiving parent.  And similarly, whereas at the moment, equipment and clothes are handed over at the café, he would those items to be delivered at the gate of the home of the receiving parent.

6. Some problems have been identified but in my view, they do not warrant a change to the current practice.  I appreciate the father did not agree to the current practice but he has complied with it to keep the peace.  That was probably the best course.  The mother says that she is intimidated if she approaches the father’s home.  I cannot test that.  On occasions the evidence suggests that her conduct has been provocative and inconsistent with her being intimidated but I cannot gainsay her assertion. 

7. The father’s case in the substantive proceedings is going to include issues about the mother’s compromised mental health.  There is some evidence of his communication with her, and some conduct by her, that is not inconsistent with that contention.  In those circumstances perhaps greater regard should be had to the mother’s apprehensions.

ORDERS DELIVERED

1. An order is sought by the father that the Court restrain each of the parties in relation to communication.  Although a mutual order is sought, the father wants the wife restrained from contacting or attempting to contact, communicate with or attempt to communicate with him except in the event of an emergency about the children; as provided in some paragraphs of the orders of 10 January, which referred to a communication book; within three hours of serious injury or illness; changes to residential address, landline number, mobile number, email address; except for communications at any time by email or letter and text messages between the hours of 8.00 am and 6.00 pm.

2. It is not possible to impose common sense on the parties.  Ultimately all of these things can be regulated by the husband himself.  He can not take telephone calls.  He can not open text messages.  He can do those things rather than the Court making more orders.

3. We are taught at law school you cannot have specific performance of a personal contract.  You cannot require people to interact closely and nicely with each other.  It is hard to require somebody to employ somebody, and to deal with each other on a daily basis.  In Family Law we purport to do it.  The hope is that if cooperative parenting is possible, at some time after separation parents will take up their responsibilities again and will be able to deal with each other on a new but respectful basis.  If not, then unfortunately one parent will be shut out.  Most of the time that is what happens.  This is part of the reason why much of Family Law is built around settlement; around mediation and conciliation and other efforts to explain to parents the need for them to cooperate.  In any event it is not sensible or practical for the Court to become involved in the level of detail that is being requested here. 

4. As I say, the father can avoid reading text messages from the mother if he wants to.  He can refuse to answer her phone calls.  Perhaps that will be best if that avoid him or the children, more importantly, having the feeling of being harassed or upset by those events.  I will not make orders in the terms of that paragraph.

ORDERS DELIVERED

1. An injunction is sought to restrain each of the parties from booking the children into things which take place during the other parent’s time – presumably that is without consent.  The father seeks an order that the mother undo the registration of G and H with a particular sporting club playing in the Suburb I Sports Association.  The Independent Children’s Lawyer (‘ICL”) supports the continuation of the current arrangement.

2. I am told that there is a reason to doubt it but it is asserted that the mother did not know that the father opposed arrangements being made for the children by her that imposed on his time.  The mother unilaterally booked them in to play sports through the local association.  The father mainly complains about the fact that they are taking on too many activities but he also wants them to be able to play sports for their school. 

3. I do not know what the children want.  It is going to be asserted by the mother that they wanted to play in the club competition.  There is some suggestion from the father that one of the girls did not want to do it at some time in the past.  I am not going to order the mother to undo the current arrangement but I will restrain her from doing such a thing again.

ORDERS DELIVERED

1. Finally, in relation to parenting issues, there is an application by the mother to remove the permission given to the father in October last year for overseas travel with the children.  Under that arrangement the travel was necessarily limited to seven days, or thereabouts.  The father too, seeks that the mother not be permitted to take the children overseas, because of concerns about the mother’s mental health. 

2. There is a report from a single expert in the proceedings.  It is not a report to the Court for interim determination; it is a report for the substantive proceedings.  The report is untested.  The report does not go directly to the question of overseas travel.  The children are of an age where they are capable of some self-protection.  There is no travel in prospect, but there may be.  In my view, there is no reason to change the parties’ agreement from October 2014 and I will not make that order. 

3. In relation to subpoenas issued to Lyons Wood and to Barkus Doolan, and I adjourn the subpoenas to the subpoena list at 10.30 on 22 April 2015.

ORDERS DELIVERED

1. Nextly, there are claims for child support departure and spousal maintenance. 

2. In relation to child support the Court does not have immediate jurisdiction in relation to the issue as an administrative scheme.  The Court can deal with departure applications and payments in a form other than periodic payments.  In relation to departure applications, parties cannot normally come directly to a Court. 

3. There is a provision for a Court having a direct role in relation to appealing certain decisions by the Child Support Registrar.  Departure orders can be brought before a Court once they have been through a series of steps, including two internal reviews and a decision by the Social Security Appeals Tribunal in relation to quantum. 

4. There is a provision – s 116 – of the Child Support Assessment Act which allows parties to come directly to the Court for departure, once an assessment has been made, notwithstanding that they have not been through the other steps, in the event that the Court is satisfied that it is in the best interests of payer and the payee.

5. Each of the parties has put a proposal to me in relation to child support departure.  It is put without objection on behalf of the wife, that it is in the best interests of the parties that permission is given in this case.  I think it is in the best interests of the parties that I make this decision.

6. The Court’s jurisdiction is based on an assessment.  In this case it issued on 22 May 2014 at the total rate of $1,926 per month, for the period 19 May 2014 to 8 July 2015. 

7. The child support departure requires that the Court find that, in the special circumstances of the case, there are grounds for departure.  The circumstances here would fall within the s 117(2) grounds dealing with the because of the income, property and financial resources of either parent and children being educated in the manner that was expected by their parents.

1. The administrative scheme is not of much value, apart from child support agreements, for parents in a certain socioeconomic groups.  The formula itself ceases to accommodate children of a payer who earns about two and a half times average weekly earnings.  That is not this family.  So I am satisfied, for the purposes of today, that the children are being educated in a way expected by the parties, but also because of the income and financial resources of the husband, that ground is made out.

2. Then one turns to s 117(4) which deals with the issues going to what would be just and equitable as between the parents.  There is a menu of provisions that can be taken into account. 

3. I think I was told that the parties are $800 a week apart, in their claims for both maintenance and child support.  They have already made proper provision, it seems to me, for what Mr Miller described as a dignified existence for the wife and children in the former matrimonial home.  What we are really dealing with is the margins.

4. There is no contention that the husband cannot afford to pay a proper rate.  The issue under this provision, boils down to what is a proper level of expenditure.  The items that have been claimed by the wife, and complained about by the husband, are a claim for house repairs at $200 a week, and I propose to deal with that as the husband suggested; to provide that he make the payment directly.  He knows very well that the parties will be back at Court if there’s any problem with it.  They have been able to cooperate to some extent already.

5. Nextly, a claim for child minding at $120 per week is withdrawn.  That affects the claim by $40 a child.  The $200 house repairs is about $66 a child. 

6. There is an issue about medical, dental and optical expenses, at $150, on the basis that the husband is paying those expenses.  I was told something about the wife having been dropped from the medical insurance paid by the husband and her taking up her own insurance that also covers the children.  There has been some correspondence about that, but that amounts to $50 a child.  That amounts to about $156 a child in additional payments, which have been conceded, or I which I will remove.  The wife’s claim is for $650 per week.  I will order a departure to $500.  The wife seeks some non-periodic payments, and I was not told that they were controversial.  They are expenses that he is paying in any event.  The application appropriately makes provision for adjustments by the CPI. 

7. The final step in departure proceedings is s 117(5), which deals with whether an adjustment is otherwise proper.  That deals with the situation between the parents and the taxpayer.  I have not been told that either of the parents is in receipt of an income-tested benefit, and therefore that provision does not loom large in these proceedings.

8. There is a necessary in exactitude about these things but these are orders made on an interim basis.  There is a provision in the child support legislation which allows the Court to make an order until further order.  There is some debate about it but it is done. 

9. It seems to me that it is just and equitable, and otherwise proper, to order a departure in the terms sought by the wife at paragraphs 4, 5 and 6, of the orders sought by her in exhibit 3, save that $650 per week be replaced with $500.

10. Nextly, there is an application for spousal maintenance.  This is a remedy available between parents who, in this case, have been married, whether the marriage is intact or not, whereby if one party can establish that they are unable to adequately support themselves from their own resources, the other party can be called on to support them to a reasonable extent.  The relevant criteria that one has to look to in dealing with a claim under s 74 for maintenance, is s 75, which is a hardworking provision that does a number of jobs.

11. The parties have, helpfully, refined the issues to be dealt with.  There is no issue about the husband’s capacity to pay, for the reasons that I have identified.  There is a concession about the wife’s need for maintenance in that the husband has provided a subsidy to the wife’s household, broadly, at a certain level for some time.  The question is in the detail. 

12. There is a general submission that the wife receives enough money.  That’s not a terribly helpful submission in this context.  There are all sorts of families, and people different amounts of money, and it is not a matter of the Court saying that there is an absolute limit on how much support can be provided, or should be provided.

13. As to house repairs, I will deal with that in the same way.  That is, the husband will pay for those things.  If the parties cannot agree then no doubt the matter will come to Court.  And I think that was the only specific complaint made about the wife’s claims.

ORDERS DELIVERED

1. The husband’s proposal is that there be specific limits, based on what he spent in the past, on various types of expense.  I am not going to make that provision.  No doubt if there is an excessive bill and it cannot be explained then, again, the parties no doubt can come back to Court if there is a problem.  It just seems to me that to place an arbitrary limit on expenses by reference to past bills is unnecessary.

2. The house repairs removes $100 from the claim, which I am told is $1,240.  $1,140 per week is $4,940 per calendar month, by my arithmetic.

3. There is an application, finally, for payment of a lump sum of $400,000.  The argument against this claim is that it is not necessary to make the order.  Mr Miller took both sides of this argument, it seemed to me.  He said that it was not necessary; that the husband had made proper provision for the wife in the past (there have been payments totalling, I think, over $445,000); and therefore the order is not needed.

4. There is no doubt about the source of power.  Section 79 gives the Court power to make an order.  Therefore the requirement is to find a pool of assets, assess contributions, and the other non-contribution aspects of s 79; it being just and equitable to make an order at all, and that the order itself be just and equitable.

5. There does not seem any doubt that the wife would receive at least $845,000 in property settlement.  In fact, I am told that the husband proposes that she receive some millions of dollars.

6. The husband has it that it is not necessary to make the order.  The parties should be able to sort it out, and if they cannot, they can come back.  When I asked Mr Miller how such a payment could be structured he said – albeit in more elegant terms – that the husband does not know and will think about it when the time comes.  Mr Miller identified possible sources as the sale of something; an arm’s length’s borrowing; or a non-arm’s length borrowing.  It was submitted that in any event, a payment couldn’t be made, at the earliest, until the first week of July in the event that a non-arm’s length borrowing was the chosen method.

7. The fact that the husband does not plan to think about this until the time comes, and the fact that Mr Miller told me that he thought the wife would be up for something in excess of $1 million in legal fees, suggests that it might be timely to give the issue some momentum now, just to avoid paperwork in the future.  The legal position is that almost, why not?  There was jurisprudence in relation to interim property settlement; that there had to be complicated financial proceedings, and that one party had to know everything and the other party know nothing about the family financial circumstances.  All of that has been swept aside. 

8. There needs to be a reason for a payment, and the payment needs to fall within the provisions of s 79.  The reason could be a dishwasher breaking down.  It does not have to be anything to do with legal costs or anything else.  It is obvious that it is appropriate to make an order.  The wife has some funds.  She is not obliged to exhaust her funds before she makes a claim for further funds. 

9. The subtext of this, in relation to costs is, that a party should not be required to litigate with one hand tied behind her back.  When proper provision is made for costs on the husband’s side there should not be any shadow of the wife being required to consider settlement discussions and so on, without being able to fund appropriate legal representation. I do not suggest that that was the husband’s intention here.

10. So putting all of that together, I mentioned to the parties I had in mind that the payment would not be made until the relevant fund holding the wife’s last distribution was reduced to $50,000.  I am told that is in a trust account.  Therefore it is not being drawn on ad hoc.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 April 2015.

Associate:

Date:  27 May 2015