BILLSON & BILLSON

[2017] FamCA 620

FAMILY COURT OF AUSTRALIA

BILLSON & BILLSON [2017] FamCA 620

FAMILY LAW – CHILDREN – Parenting orders – Relocation – where parties agree that child should relocate to United Kingdom to live with mother – where child to spend substantial holiday time with father – where parties agree to have equal shared parental responsibility - where mother seeks to restrain father from travelling with child outside of Europe during short holiday periods – where it is in child’s best interests for no restriction on travel when spending time with father – where parties in disagreement as to mother’s contribution to child’s travel costs – where father is in financial position to pay for all child’s travel costs except for one return airfare to be paid by mother

FAMILY LAW – CHILD SUPPORT – Departure application – where mother seeks a departure order under s 117 requiring father to pay all school tuition fees – where grounds for departure established – where father is earning significantly more than the mother – where there is a shortfall between the current administrative assessment and costs of education – where it is just and equitable to require father to pay annual school fees – where his contribution to school fees should be credited against his child support liability

Family Law Act 1975 (Cth) s 60CC
Child Support (Assessment) Act 1989 (Cth) s 117

APPLICANT: Ms Billson

RESPONDENT: Mr Billson

FILE NUMBER: MLC 8915 of 2012

DATE DELIVERED: 18 August 2017

PLACE DELIVERED: Townsville

PLACE HEARD: Melbourne

JUDGMENT OF: Tree J

HEARING DATE: 18, 28 April and 15 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITORS FOR THE APPLICANT: Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lethlean 18 and 28 April 2017

SOLICITORS FOR THE RESPONDENT: Richmond & Bennison

Orders

1. The final orders dated 6 August 2014 be discharged forthwith.

2. The mother and father have equal shared parental responsibility for X born … 2014 (“the child”).

3. The child be permitted to permanently relocate to the United kingdom.

4. The child live with the mother subject to paragraph 5 of these orders.

5. The child spend time and communicate with the father as follows:

   (a)For all of the following UK gazetted school term holidays:

   (i)     Autumn half-term holiday;

   (ii)    Spring half-term holiday; and

   (iii)     Summer half-term holiday;

   (b)For one half of the UK gazetted long summer holiday with the father to have the first half in even years and the second half in odd years;

   (c)For the UK gazetted winter holidays (Christmas period) commencing in 2018 and each alternate year thereafter;

   (d)For the UK gazetted spring holidays (Easter period) in 2019 and each alternate year thereafter.

   (e)Such other times as agreed in writing between the parties provided that:

   (i)     If the time is on a school day there be no interruption to school attendance;

   (ii)    The father provide the mother with at least two weeks’ written notice of the time; and

   (iii)     The father’s time with the child, inclusive of his holiday time, does not exceed 16 weeks per calendar year.

6. For the purpose of interpretation of these orders:

   (a)The half-term holidays commence at 9:00am on the day after the conclusion last day on which the child is required to attend school, and conclude at 3:00pm on the day before the child is required to attend school;

   (b)All other holiday periods commence within 24 hours of conclusion of the last day on which the child is required to attend school (to take into account international flight schedules) and conclude at least 48 hours prior to the commencement of school on the first day on which the child is required to attend school.

7. For the purposes of changeovers:

   (a)If the child is travelling internationally, she must be accompanied to the relevant airport terminal by an immediate family member unless otherwise agreed in writing between the parties; and

   (b)All other changeovers take place at the mother’s residence unless otherwise agreed in writing between the parties.

8. Neither the father nor the mother be restrained from travelling with the child.

9. Either party can take the child out of the United Kingdom for holidays and for other short periods of time provided that:

   (a)The travelling parent provide the other parent with as much as notification as possible of their intention to take the child out of the United Kingdom and in any event will give not less than seven days written notice of such intention, with such period of notice to be less by agreement;

   (b)The travelling parent provide to the other parent an accurate itinerary to include the departure and return dates, the country or countries the child will be travelling to, the approximate dates on which the child will arrive and depart each country and a landline telephone number and address at which the child can be contacted in each country.

10. When the child is in the care of one party, that party facilitate the child’s contact with the other party, via telephone, SMS, Skype and/or email for the reasonable duration and at such reasonable times as determined by the child.

11. All of the child’s passports be held by the mother.

12. Each party do all necessary and sign all required documents for:

    (a)The renewal of the child’s passport/s;

    (b)Any visas necessary for the child’s residence in the United Kingdom.

13. On the occasions that the father travels internationally with the child, the mother will release the child’s passport to the father at the commencement of the travel period and the father return the passport to the mother contemporaneously with the child’s return to the mother’s care.

14. Each party, by themselves or their servants or agents, be restrained from:

    (a)Discussing these proceedings, and/or negotiations about parenting, with, or in the presence of, or within the hearing of the child, and allowing her to remain in the presence of, or within the hearing of, any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these orders;

    (b)Showing to, or leaving accessible to, the child any document connected with these proceedings;

    (c)Showing to or leaving accessible to, the child SMS text messages, emails or other written communications, between the parties.

15. The child be enrolled at Z School or such other private school as agreed between the parties in writing.

16. Each party:

    (a)Be at liberty to obtain school reports, school notices, school newsletters and the like for the child;

    (b)Be at liberty to attend separate parent-teacher interviews for the child;

    (c)Be at liberty to attend all school activities and functions; and

    (d)Do all such acts and sign all such documents, as may be required to facilitate same.

17. Each party:

    (a)Keep the other advised, at all times, of his/her current residential address, email address, landline telephone number and mobile telephone number and notify the other within seven days of changes to any of these;

    (b)Keep the other advised, at all times, of any medical emergency, illness or injury requiring treatment of, or consultation with, a medical practitioner or allied health professional, suffered by the child while in his/her care; and

    (c)Keep the other advised, at all times, of the names and contact details of all medical practitioners and allied health professionals treating or consulting the child; and

    (d)Do all such acts, and sign all such documents, as may be required to authorise such medical practitioners and allied health professionals to communicate directly with the other party.

18. Until the conclusion of the child’s secondary education, the father pay all compulsory tuition fees for the child’s attendance at Z School or such other private school as agreed between the parties in writing;

19. Until the conclusion of the child’s secondary education,  the mother pay all other costs relating to the child’s attendance at Z School or such other private school as agreed between the parties in writing.  For the purpose of this order, “other costs” includes, but is not limited to, the cost of uniforms, text books, computers, excursions, camps and the costs of a tutor (if necessary) and extra-curricular activities.

20. The father pay all travel costs associated with the child spending time with the father pursuant to these orders, save for the airfares for one return trip to Australia each year, which will be paid by the mother.

21. The child support payable by the father pursuant to the provisions of these orders is to be credited against the father’s liability under any administrative assessment payable by the father to the mother until the happening of a child support terminating event in respect of the child.

22. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC8915/2012

Ms Billson

Applicant

And

Mr Billson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These parenting and child support departure proceedings were listed for trial before me to commence Tuesday 18 April 2017 in Melbourne, however the parties were then able to agree all but three slender matters which I will detail shortly.  Particularly the parties were able to agree that the child the subject of these proceedings, X, born in 2004 and hence presently 13 years of age, (“the child”) should relocate from Melbourne to UK to live with Ms Billson (“the mother”).  Further, the parties were able to agree that the child should spend substantial holiday time with Mr Billson (“the father”) and that the he should enjoy a liberal communication regime with her.

2. What the parties were then unable to agree was as follows.  Firstly, the mother would not agree to the father being able to travel with the child outside of Europe during the three shorter holiday periods which the parties had agreed the child and the father would spend together (being the autumn half-term holiday, the spring half-term holiday and the summer half-term holiday).  The mother proposed that the father should be positively restrained from travelling with the child outside of Europe during those periods, whereas the father contended that he should be able to travel anywhere in the world.  Secondly, although the father and mother were able to agree that the child would attend the B School, the mother contended that there should be a departure from the current assessment of child support, such that the father be required to pay all compulsory tuition fees for the child’s attendance at that school, but that she otherwise pay the costs of schooling.  She said that such payments should be credited against any child support assessment raised against the father.  For his part, the father contended that he should pay one half of the fees, but that otherwise his further contribution to the child’s costs of schooling should be met by any child support assessment.  Thirdly, there was a very slender dispute between the parties as to how many return airfares for the child’s travel between the United Kingdom and Australia should be paid for by the mother each year.  She contended she should pay only one fare; the father contended she should pay for two.

3. On 18 April 2017 I heard evidence and submissions in relation to those three matters and reserved my decision, but required the parties to provide minutes of the orders to be made by consent, together with minutes of their proposed orders in relation to the contentious issues.  However it transpired that further areas of conflict were revealed by that process, and to try and staunch the spread of further conflict, the matter was again listed on 28 April 2017, at which time much of the conflict was contained.

4. On 5 May 2107, the parties again provided me with agreed consent orders, and their further proposed orders dealing with the contentious issues.  It must be said however, that some further issues beyond those initially argued remained contentious, but were not the subject of submissions.

5. Unfortunately, the matter was not expeditiously determined by me, and further disputation developed as to the child’s school, a matter which had been previously agreed.  On 11 August 2017, the mother filed an Application in a Case seeking to re-open her case, which came on before me for hearing on 15 August 2017.  By then, in fact the parties had agreed upon the school, and hence varied the content of the agreed orders.  Further, during the course of discussion on that day, some clarity was obtained in relation to the other contentious matters, and some were in fact agreed.

6. At the conclusion of the 15 August 2017 hearing I again reserved my decision.  This is that decision and the reasons for it.

BACKGROUND FACTS

1. The father was born in 1974, and hence is presently 43 years of age.  The mother was born in 1977, and hence is presently 40 years of age.  In 1996, the parties’ first child, Ms Y, was born; she is therefore presently 21 years of age.  The parties married in 2001 and subsequently the child X was born in 2004.  The parties separated on 27 November 2013 and final consent parenting orders were made in the Federal Circuit Court on 6 August 2014.  Final property orders were made on 13 May 2016.

2. Under the parenting orders, the child spent week about time with each parent.  However that became unworkable when, in May 2016, the mother moved to live in UK.  In September of that year, Ms Y moved to live with the mother, and thereafter, until April 2017, the child spent occasional holiday time with the mother in UK. 

3. These proceedings were commenced by the mother on 29 November 2016, principally seeking that the child relocate to live with her in UK.

4. On 20 February 2017 a Family Report was released which strongly recommended, based upon the child’s expressed wishes, that she be permitted to live with her mother in UK.  As I understand it, consistent with the parties’ agreement of 18 April, since the middle of this year the child has lived with the mother in UK.

MATTERS ARGUED ON 18 APRIL 2017

Holiday travel with father

1. The parties are agreed that the father should spend six blocks of holiday time with the child, and further, that during the father’s time with the child over the long school summer holidays, the winter holidays and the spring holidays, he should be free to take the child outside of Europe.  However for the autumn, spring and summer half-term holidays, which I was told without contradiction are each of one week’s duration, the mother was not prepared to agree that the father should be able to travel outside of Europe with the child.  Her reason for seeking that restraint on the father being able to so travel was essentially that it would be too disruptive for the child if she were to engage in lengthy overseas travel in such a short period of time.  Indeed, to a large extent, the father agreed, in that he said that it would not be his intention to have the child travel from UK to Australia during any of those three holiday periods.  However he did contemplate that he may wish to travel with the child to the United Sates in those periods, or other places outside of Europe.

2. As I shall discuss shortly, the father is in the fortunate position of having considerable wealth at his disposal, and has control over significant annual income.  Regular overseas travel with the child is certainly within his financial means.  Moreover, to date he has travelled extensively with the child during holiday periods; his evidence was that he has so travelled about 20 times with the child to all continents on the globe, and wants that to be able to continue that without restriction. 

3. As I have indicated, the mother’s opposition to that largely lay in the potential for long periods of travel away from UK during holidays of only one week’s duration to be tiring for the child.  It could see her return to school subject to fatigue, or jet-lag, or both, and hence may have some impact upon her ability to immediately pick up where her studies had concluded prior to the term holiday.  However the father acknowledged the potential for that, and indicated that, mindful of that, he would certainly not travel with the child to Australia in any such break.

4. It is unnecessary, in the context of such a slender dispute, to recite with any detail the statutory provisions and relevant legal principles which stand to determine this dispute.  Suffice to say that the best interests of the child are the paramount, but not sole, consideration in determining what order should be made, and the primary and additional considerations relevant to determining best interests are contained within s 60CC of the Act.

5. I have considered the matters enumerated in s 60CC (although few bear on this matter) and am well satisfied that the best interests of the child lie in there being no restriction upon her travel with the father as sought by the mother.  Particularly the father impressed me as cognisant of the possibility for the child to suffer from long periods of travel on short holidays and likely to take that into account when planning any travel.  Further, it is by no means clear to me that restricting travel only to Europe would ensure that the child would not become fatigued.  As I suggested to counsel during the course of submissions, travel within Europe itself, if there were connecting flights, could be protracted, whereas a direct flight between UK and a city in the United States may take little, if any, extra time, than travel within Europe.  Moreover, leaving aside the potential for definitional arguments as to where Europe’s boundaries are, wherever they may be, it seems somewhat absurd to arbitrarily restrict travel to a delineated area, but not one mile further.

6. I decline to make the order sought by the mother.

Mother’s child support departure application

1. The parties are agreed that the child should attend the Z School in UK. It is said that its annual tuition fees are similar to those of the school the parties in April 2017 had agreed the child should attend (being B School) which were something in the order of $31,000.00 to $32,000.00 per annum. The mother says that I should make a departure order under s 117 of the Child Support (Assessment) Act 1989 requiring the father to pay all of those fees, with such payment to be credited against the father’s liability under any administrative assessment payable by him.  For his part the father accepts that there should be a departure, such that he should pay one half of such fees, but that the mother should otherwise pay all costs of the child’s schooling, and any further contribution by him to those costs should simply be met by any administrative assessment, with the mother using his child support payments to meet such school fees.

2. It appears as though up until April 2017, the father has paid the child’s school fees in Melbourne, to the tune of about $21,000.00 per annum.  Further, on 14 September 2016 the Child Support Agency varied the then administrative assessment in light of the father’s payment of those school fees, such that the administrative assessment was varied to, it seems, nil.

3. As I have indicated, counsel for the father conceded that there were grounds for a departure order established on the evidence, being that the costs of maintaining the child are significantly affected because she is being educated in the manner that was expected by her parents, and because the father’s income, property and financial resources were special circumstances would otherwise lead to an unjust and an inequitable determination of the level of financial support that he should provide.

1. That concession was soundly based.  Firstly, it is plain that these parties have always expected that the child would be privately educated, wherever she lived, and secondly, the father does indeed have substantial assets and significant income, the latter totalling in excess of $700,000.00 per annum.  Although that income figure is comprised of both a substantial salary and payments made to a discretionary trust associated with the father, it was accepted by the father that both sources of income were under his control.

2. It appears as though in 2016 the father’s administrative child support assessment was $10,802.00 per annum.  Before me it appeared to be not in contention that the father would presently be assessed at being liable to pay about $16,800.00 per annum.

3. Given the concession that there are grounds for departure established, the question then becomes whether it is just and equitable, and otherwise proper, and to make the order contended for by the mother. Section 117(4) lists the matters which I must have regard to in determining whether it is just and equitable, and I have done so. Looming large are the proper needs of the child, the income property and financial resources of each of the parties, and their respective earning capacities. Also relevant are the mother’s financial circumstances, and particularly the costs of her living in UK.

4. The father’s wealth is largely contained in a shareholding which a family trust has in the company which employs him.  The father estimates that the value of that shareholding is about $2,000,000.00.  Further, although the father disclosed that from salary and allowances he received $6,394.00 income per week, in cross-examination by counsel for the mother, he conceded that in addition to those sums, there were dividends paid to the family trust in respect of its shareholding in his employer, of about $400,000.00 per annum.  True it is that the father said that he did not himself personally receive anything from those dividends (no doubt for sound tax reasons) but it is plain that he controls where those funds are directed.

5. The mother’s financial position is much more straightened.  She spends vastly more than she earns per week, including (as at April 2017, accepting she has since changed address and currently lives in a house in Soho) rent for her UK home of $3,500.00 per week.  She owns property which she estimated to be worth a little over $700,000.00, however has something in excess of $400,000.00 worth of liabilities.

6. Some attempt was made in cross-examination of her to challenge the level of expenditure which she incurs, but even if I were to discount the challenged items substantially, it is still incontestable that the mother’s financial position is exponentially worse than the father’s in all respects.

7. Against that background, it is difficult to see how the mother could realistically fund the shortfall between the total costs of education for the child on the one hand, and the amounts which she may receive from the father under an administrative assessment on the other.  That shortfall is not able to be precisely calculated, but is likely to be some thousands of dollars.  For the father, who has the control of income streams (admittedly before tax) in excess of $700,000.00 per annum, that amount can fairly be described as trifling.

8. I am well satisfied that it is just and equitable to require the father to pay the child’s private school fees in the United Kingdom, and that it is otherwise proper that I so order.  Plainly however, that sum should be credited against his assessed child support liability.

Mother’s contribution to costs of child’s travel

1. The mother says that she should only be required to pay for one return airfare of the child between UK and Australia each year.  The father contends that she should be obliged to pay for two.  It appears to be agreed that the difference is about $2,500.00 per annum.

2. The mother contends that she simply cannot, in her present financial circumstances, accommodate that amount of additional expenditure.  For his part, the father says that the mother is the one who moved to UK, and therefore she should meet the lion’s share of the additional travel costs which are now necessary.  True it is that, if the mother were in a financial position which would enable her to meet all of the additional costs, that argument would have real strength; however she simply is not in such a position.

3. The sum in contest is less than half of 1 per cent of the gross annual income under the father’s control.  Whilst I accept that there will be additional costs to the father of travel and accommodation in the United Kingdom occasioned when the child is spending time with him, which he will solely be bearing, even taking that into account, his financial position will remain overwhelmingly superior to that of the mother’s.  There is no reason to think that it is more probable than not that the mother’s financial position will improve in any substantial way in the future, even accepting that she is presently seeking to re-establish the parties’ previous business in the United Kingdom.

4. I am satisfied that the mother should only be required to pay for one return airfare per annum for the child between the United Kingdom and Australia, and will so order.

MATTERS SUBSEQUENTLY IN DISUPTE

Overview

1. As I have indicated, it was apparent from the sets of orders provided by the parties on 5 May 2017 that some additional matters were unable to be agreed between them.  It is convenient to deal with them by reference to the paragraph numbers of the “consent orders” which noted the items in dispute.

Clause 5.2

1. At the hearing before me on 15 August 2017 it was agreed that this matter could now be ordered by consent in terms of the proposed Order 5.2 sought by the father.

Clause 6.1

1. Clause 6 deals with interpretation of the orders.  The mother seeks an order 6.1 in the following terms:

   The half-term holidays commence at 9:00am on the day after the last day on which [the child] is required to attend school and conclude at 3:00pm on the day before the first day on which [the child] is required to attend school

2. On the other hand the father sought an order that:

   Holiday periods for paragraphs 5.1 commence within 24 hours of conclusion of the last day on which [the child] is required to attend school (to take into account international flight schedules) and conclude at least 15 hours prior to the commencement of school on the first day on which [the child] is required to attend school.

3. No argument was addressed in relation to the differences between these proposals.  However the drafting proffered by the father is vague (“commence within….” and “conclude at least….”) and is likely to lead to disputation between these parties, who have a long history of disagreement about even small matters.  I am satisfied that the specificity sought by the mother in her proffered draft is preferable, even accepting that the vagaries of the father’s proposal remain in the agreed clause 6.2.  

Clause 7

1. The mother sought an order in the terms as follows:

   That for the purpose of changeovers:

   7.1 If [the child] is travelling internationally, [the child] must be accompanied to the relevant airport terminal by an immediate family member unless otherwise agreed in writing between the parties; and

   7.2 All other changeovers take place at the mother’s residence unless otherwise agreed in writing between the parties.

2. On the other hand the father sought an order in the following terms:

   For the purpose of changeover [the child] must be accompanied to the relevant airport terminal, or such alternate changeover location as mutually agreed to in writing by the parties, by an immediate family member of the parent, whose care [the child] is leaving, unless otherwise agreed in writing between the parties.

3. At the hearing before me on 15 August 2017, it was said that, in reality, there was little difference between the parties’ drafting, save that the orders sought by the mother contemplated the prospect that the father may spend time with the child that did not involve travel from an airport terminal.  I agree that the mother’s drafting is preferable in that respect, and the drafting by the father is likely to lead to further disputation since, in the event that the time that the child spends with the father does not involve international travel, it would then be incumbent upon the parties to agree an alternative changeover location.  I have already noted their history of disputation.  In my view, to circumvent any such disagreements, unless there is travel from an airport involved, changeover should take place at the mother’s residence.  There will therefore be an order as sought by the mother.

Clauses 8 and 9

1. I have already dealt with this dispute in dealing with the child’s holiday travel with the father, and for those reasons there will be orders as contended for by the father.

Clause 13

1. At the hearing on 15 August 2017, I was advised that the father now consented to order 13 as contended for by the mother.

Clause 18

1. This has already been dealt with by me in discussing the mother’s child support departure application; for those reasons there will be an order as sought by the mother.

Clause 19

1. Although in the draft consent orders filed on 5 May 2017 it was said that this was in dispute, in fact the draft of the contentious orders sought by the father noted that he was in agreement with the mother’s proposed order 19, and that was confirmed by his solicitor on 15 August.

Clause 20

1. I have already discussed this when dealing with the mother’s contribution to the costs of the child’s travel, and for those reasons there will be an order in terms of the mother’s proposed Order 20.

Clause 21

1. I have already dealt with this in discussing the child support departure application, and for those reasons prefer the draft of order 21 as proffered by the mother.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.  The parties’ competing applications for costs can be dealt with in the usual way under the rules.           

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 August 2017.

Associate: 

Date: 18 August 2017