BLESSINGTON & BLUNT
[2014] FCCA 1951
•3 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLESSINGTON & BLUNT | [2014] FCCA 1951 |
| Catchwords: CHILD SUPPORT – Payment of private school fees – child support otherwise than in the form of periodic amounts – both parties unhappy with decision of Senior Case Officer – documents not served upon Child Support Registrar. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA Child Support (Assessment) Act 1989, ss.116, 123, 145 |
| KB & TC (2005) FLC 93-224 Chappell and Chappell (2008) FLC 93-377 Mills & Watson [2008] FMCAfam 2 |
| Applicant: | MR BLESSINGTON |
| Respondent: | MS BLUNT |
| File Number: | MLC 8024 of 2013 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 30 April and 21 May 2014 |
| Date of Last Submission: | 21 May 2014 |
| Delivered at: | Launceston |
| Delivered on: | 3 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Unrepresented |
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the Respondent: | Mr P Glass |
| Solicitors for the Respondent: | Septimus Jones & Lee |
ORDERS
MR BLESSINGTON (“the father”) and MS BLUNT (“the mother”) have equal shared parental responsibility for X born (omitted) 2003 (“the child”).
That the child live with the mother.
That unless otherwise agreed in writing between the mother and the father, the child is to spend time with the father as follows:
(a)from 6:30 p.m. on Friday 19 September 2014 until 6:30 p.m. on the following Sunday;
(b)from 6:30 p.m. on Friday 24 October 2014 until 6:30 p.m. on the following Sunday;
(c)from 6:30 p.m. on Friday 21 November 2014 until 6:30 p.m. on the following Sunday;
(d)from 6:30 p.m. on Friday, 26 December 2014 until 12:00 midday on Saturday 2 January 2015; and
(e)from 6:00 p.m. on the Saturday preceding Father’s Day each year until 6:00 p.m. on Father’s Day if the child is not otherwise spending time with the father pursuant to these orders.
That unless otherwise agreed in writing between the mother and the father, the child is to spend time with the father following the start of the child’s new school year in 2015 as follows:
(a)during school terms on such alternate weekends as are nominated by the father in writing by 1 December in the previous calendar year from 6:30 p.m. on Friday until 6:30 p.m. on the following Sunday;
(b)for one half of all school holidays at the end of Terms 1, 2 and 3 as agreed, but failing agreement for the first half of each such holiday period, being from 6:30 p.m. on the last day of the school term until 12 midday on the middle Saturday of the relevant school holiday period;
(c)during the long summer school holidays, for one half of all such holiday periods as may be agreed in writing between the parties but failing agreement for the first half where the holidays commence in an odd numbered year and the second half where the holidays commence in an even numbered year.
That the child is to spend time with the father for such further and other periods as may be agreed between the mother and the father in writing.
That if the father is to spend time with the child pursuant to these orders during a weekend that includes Mother’s Day that time is to end at 6:00 p.m. on the Saturday preceding Mother’s Day.
That unless otherwise agreed in writing between the mother and the father, the child is to be collected by the father from the mother’s home at the start of each period of time with the father and she is to be returned to the mother’s home at the end of each such period.
That the father and the mother each:
(a)is at liberty to attend any school function, extra-curricular activities, social events or similar events whether or not it falls during their time with the child;
(b)is at liberty to attend all school events, parent teacher evenings and any similar events ordinarily attended by parents and to receive school newsletters, reports, photographs and other information ordinarily provided to parents;
(c)must keep the other informed of details of the child’s treating general practitioners and advised about medical emergencies concerning the child which occur when the child is in that parent’s care;
(d)must keep the other informed of his or her current residential address and mobile phone number; and
(e)is hereby restrained by injunction from denigrating the other parent to the child or in the child’s presence.
That the parties’ applications for orders in relation to Child Support are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Blessington & Blunt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8024 of 2013
| MR BLESSINGTON |
Applicant
And
| MS BLUNT |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is MR BLESSINGTON (“the father”) and the Respondent is MS BLUNT (“the mother”). They commenced living together in 2002 and finally separated in mid-2011. They have one child, X born (omitted) 2003 (“the child”).
Both parents have re-partnered.
The father is a (occupation omitted) and the mother is a (occupation omitted).
Applications
On 18 September 2013 the father filed an Initiating Application seeking orders for:
·Fair access to [the child] for a total of 56 days per calendar year by the father for the remainder of 2013 and 58 days for 2014;
·Agreed pick-up/drop-off of [the child] at a location that is neutral and halfway between the parents’ residences (and named a particular hamburger franchise at a named shopping centre); and
·Open communication between [the child] and her father: by her father providing a pre-paid mobile telephone to [the child] so calls can be made and received without being vetted by [the child]’s mother.
On 23 October 2013 the mother filed her Response in which she sought orders that the parties equally share parental responsibility for the child and for the child to live with her - those orders do not appear to be opposed by the father. However, the mother also sought orders that would allow the child to spend time with the father at weekends on a fortnightly basis during school terms and also for half of the child’s school holidays.
On 28 October 2013 Judge Hartnett set the matter down for hearing in April this year.
In November 2013 the father applied to the Child Support Registrar for a change in the child support that he had been assessed to pay. He considered that the assessment had not correctly taken the mother’s income into account. The mother cross-applied to have the father contribute to the school fees at the (religion omitted) school that the child attends and to the costs of extracurricular activities.
As a delegate of the Child Support Registrar, Senior Case Officer M (“the SCO”) issued a decision on 11 March 2014 (“the Child Support Decision”) and the following changes were made to the Child Support assessment:
For the period 01 July 2013 to 30 September 2014[the mother]’s income is set to $103,000.
For the period 01 January 2014 to 31 December 2016 the annual rate payable by [the father] is to be increased by $960.
On 01 January 2015 and 01 January 2016 the increase to the assessment is to be inflated using the December quarter inflation factor (consumer price index) for Melbourne form (sic) the previous year.
Notwithstanding that they both had some success in what they were seeking, it is clear that neither parent was particularly happy with the Child Support Decision.
The father lodged an objection to the Child Support Decision with the Department of Human Services on 24 March 2014. I shall refer to that below.
On 1 April 2014 the mother filed an Amended Response in which she sought parenting orders that were largely similar to the parenting orders in her earlier Response, but she also sought Child Support orders as follows:
12. By way of non-periodic child support pursuant to section 123 of the Child Support (Assessment) Act 1989 the father pay 50% of the education costs for [the child]-
(a) for [a named (religion omitted) primary school] or such other school as may be agreed between the parties in writing:
(b) for [a named (religion omitted) secondary school] or such other school as may be agreed between the parties in writing.
13. The father and mother are to make payments as referred to in Order 12 hereof directly to the provider.
14. By way of clarification of Order 12 herein the education costs for [the child] are made up of tuition fees, levies, uniforms, books and stationary, laptop or such other computer or tablet as is required by the school attended by [the child] in accordance with these Orders.
15. The payment of education costs set out in Order 12 herein are not to be taken into account in the determination of the liable parent's liability pursuant to any administrative assessment of child support.
16. The payment of education costs set out in Order 12 herein are not to be credited against the non-liable parent's entitlement to any administrative assessment of child support.
The father then filed an Amended Application on 3 April 2013 seeking orders as follows.
To have a parenting plan in place for [the child] for the whole of 2014 (this will enable me to book and secure these dates ahead of time at my work)
To enable [the child] to have better communication with me, by me providing [the child] with a pre-paid mobile telephone: to allow [the child] to call me when she needs to and to stop [the mother] unduly restricting communication between a child and her father.
An on-going order for fair and reasonable access from 2014 until [the child] is 18 years of age.
i. Weekends for 2014:
1. Friday 23 May at 1830 hours to Monday 26 May at 0630 hours.
2. Friday 25 July at 1830 hours to Monday 28 May at 0630 hours.
3. Friday 22 Aug at 1830 hours to Monday 25 Aug at 0630 hours.
4. Friday 24 Oct at 1830 hours to Monday 27 Oct at 0630 hours.
5. Friday 21 Nov at 1830 hours to Monday 24 Nov at 0630 hours.
ii. School Holidays for 2014-2015:
1. Friday 27 June at 1830 hours to Friday 4 Jul at 1830 hours.
2. Friday 19 Sep at 1830 hours to Friday 26 Sep at 1830 hours.
3. Friday 26 Dec 2014 at 1830 hours to Saturday 2 Jan 2015 at 1200 hours.
The pick-up/drop off location to be at a neutral halfway location between our residential addresses … Any one of 14 listed locations near the vicinity of [a named location] including
i. Community Centres;
ii. (religion omitted) Churches;
iii. Parks; and a
iv. Police Station.
The respondent [mother] nor any of her agents attend at my … residential address for any reason whatsoever.
If the respondent … wishes for our daughter to continue in private schooling for primary school education, including the (omitted) Church school system: she is to fund the difference from the costs associated with a State school. (The costs of schooling are already being deducted via the Child Support Agency).
If the respondent [mother] wishes for our daughter to continue in private schooling for future secondary school education, including the (omitted) Church school system: she is to fund the difference from the costs associated with a State school.
The matter came on for hearing on 30 April 2014 (“Day 1”) and did not conclude on that day. The hearing resumed on 21 May 2014 (“Day 2”) and at that time the mother’s counsel provided me with a minute of the orders that the mother was then seeking. They were:
1. That the Mother and the Father have equal shared parental responsibility for [the child].
2. That [the child] live with the Mother.
3. That [the child] spend time with the Father from the date of these orders until the conclusion of the summer school holidays in January 2015 as follows:
(a) from the conclusion of (omitted) or 4.30pm on Friday 27 June 2014 until 6.30pm on Friday 4 July 2014;
(b) from the conclusion of (omitted) or 4.30pm on Friday 25 July 2014 until the return to school or 9.00am on Monday 28 July 2014;
(c) from the conclusion of (omitted) or 4.30pm on Friday 22 August 2014 until the return to school or 9.00am on Monday 25 August 2014;
(d) from the conclusion of (omitted) or 4.30pm on Friday 19 September 2014 until 6:30pm on Friday 26 September 2014;
(e) from the conclusion of (omitted) or 4.30pm on Friday 24 October 2014 until the return to school or 9.00am on Monday 27 August 2014;
(f) from the conclusion of (omitted) or 4.30pm on Friday 21 November 2014 until the return to school or 9.00am on Monday 24 November 2014; and
(g) from 6:30pm on Friday 26 December 2014 until 12:00 noon on Saturday 2 January 2015.
4. That as and from the commencement of the new school year in 2015, [the child] spend time with the father as follows:
(a) during the school term, from the conclusion of (omitted) or 4:30pm Friday until the return to school or 9:00am Monday on such alternate weekends as are nominated by the Father in writing by 1 December of the previous calendar year;
(b) during school term holidays, for one half of all holiday periods as agreed and failing agreement for the first half of the term holiday periods (being from the conclusion of school on the last day of term until 12.00pm on the middle Saturday of the term holiday period);
(c) during the long summer school holidays, for one half of all holiday periods as agreed and failing agreement for the first half where the holidays commence in odd numbered years and second half where the holidays commence in even numbered years (the long summer holidays being defined as commencing on the last day of the school year through until 6:30pm on the day prior to the start of the new school year); and
(d) for such further and other time as may otherwise be agreed between the parties.
5. That the Mother’s time with [the child] be suspended as follows from 6:00pm on the Saturday preceding Father’s Day to 6:00pm on Father’s Day.
6. That the Father’s time with [the child] be suspended as follows:
(a) During all term school holiday and summer holidays the Father’s time pursuant to 4(a) be suspended and continue into each new school term as if it had not been so suspended; and
(b) from 6:00pm on the Saturday preceding Mother’s Day to 6:00pm on Mother’s Day.
7. That each of the Mother and the Father:
(a) be at liberty to attend any school function, extra-curricular activities, social events or similar events whether or not it falls during their time with [the child];
(b) be at liberty to attend all school events, parent teacher evenings, etc., ordinarily attended by parents and to receive school newsletters, reports, photographs and other information ordinarily given to parents;
(c) keep the other informed of details of [the child]’s treating general practitioners and advised about medical emergencies concerning [the child] which occur when [the child] is in that parent’s care;
(d) keep the other informed of their current residential address and mobile phone number; and
(e) be and are hereby restrained by injunction from disparaging the other parent.
8. That wherever possible the changeover shall take place at [the child]’s school or whilst she continues at (omitted), at the conclusion of this activity on Fridays. However, if [the child] is not at school [the child] shall be collected from the Mother’s residence at the beginning of the Father’s time with her and the Mother shall collect [the child] from the Father’s residence at the conclusion of his time with her.
9. That the Mother and the Father shall ensure that [the child] attends all of her extra-curricular activities during her time with them.
10. Both parties be restrained by injunction from discussing the proceedings in the presence or hearing of [the child] or denigrating the other parent in her presence.
11. Both parties do all things necessary and sign all documents required to have an Australian passport issued in [the child]’s name within 14 days of a written request by the other -party.
Child Support Matters
12. That the parties forthwith do all such acts and things and sign all documents as are necessary in order to enrol [the child] at [a named secondary school] to commence in 2016.
13. By way of non-periodic child support pursuant to section 123 of the Child Support (Assessment) Act 1989 the father pay 50% of the education costs for [the child]:-
(a) for [a named primary school], or such other school as may be agreed between the parties in writing;
(b) for [the named secondary school], or such other school as may be agreed between the parties in writing.
14. The father and mother are to make payments as referred to in Order 13 hereof directly to the provider.
15. By way of clarification of Order 13 herein, the education costs for [the child] are made up of tuition fees, levies, uniforms, books and stationary, laptop or such other computer or tablet as is required by the school attended by [the child] in accordance with these Orders.
16. The payment of education costs set out in Order 13 herein are not to be taken into account in the determination of the liable parent’s liability pursuant to any administrative assessment of child support.
17. The payment of education costs set out in Order 13 herein are not to be credited against the non-liable parent’s entitlement to any administrative assessment of child support.
I was also informed by the mother’s counsel that the weekends set out in the minute were the weekends that the father was seeking. However, the major difference between the parties in relation to those weekends was that the mother was seeking a return of the child to her school on Monday mornings rather than a handover at 6.30 a.m. at a “neutral halfway location” as sought by the father.
The evidence
The father relied upon his affidavits filed on 18 September 2013 and 3 April 2014. He was cross-examined.
The mother relied upon her affidavit filed on 1 April 2014 and an affidavit sworn by her partner and filed on the same day. She and her partner were both cross-examined.
Terminology
In a 2008 decision,[2] FM Walters (as he then was)[3] said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[2] Mills & Watson [2008] FMCAfam 2
[3] Now Justice Walters of the Family Court of Western Australia
In both Carpenter and Lunn [4] and Chappell and Chappell [5] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[4] Carpenter and Lunn (2008) FLC 93-382 (Finn, Boland & Thackray JJ -19 August 2008)
[5] Chappell and Chappell (2008) FLC 93-377 (Warnick, Boland and Thackray JJ -15 September 2008)
In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I will use the word “contact” interchangeably with terms such as “spend time with” and “communicate with”.
The issues
In general terms, the main issues in dispute between the parties are:
·what parenting orders should be made under the Family Law Act 1975 (“the Family Law Act”) in relation to the father’s contact with the child; and
·what orders (if any) should be made in relation to the payment of the child’s school fees under the Child Support (Assessment) Act 1989 (“the Assessment Act”).
I will consider the issues in that order, although there is some overlapping in relation to them.
Relevant law – parenting orders
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration,[6] and in determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section refers to “primary considerations” and “additional considerations”.
[6] Section 60CA
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[7] The court must also take into account those of the “additional considerations” that are relevant.[8]
[7] Subsection 60CC(2)
[8] Subsection 60CC(3)
Each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[9]
[9] See Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[10]
[10] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[11]
[11] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[12]
[12] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[13] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[14] made it clear that if it is not open to a court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s 65DAA(1)(c).[15]
[13] MRR v GR (2010) FLC 93-424
[14] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[15] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[16]
[16] See KB & TC (2005) FLC 93-224
Primary considerations
The benefit to the child of having meaningful relationships with both parents appears to be accepted by both parents, so this is not really a significant issue in this matter. In addition, there were no allegations that the child needs protection from abuse, neglect or family violence, so that does not require further consideration.
Relevant additional considerations
Because the mother was originally proposing that the child spend more time with the father than he was seeking, many of the additional considerations under section 60CC are not particularly relevant to what I have to determine.
The child’s views
I was not presented with any independent evidence of the child’s views or wishes in relation to this matter. However, I conclude from the indirect evidence that the child wishes to continue spending time and communicating with her father.
The relationships of the child with the parents and other people
Again, I was not presented any independent evidence in relation to the child’s relationships with her parents or their current partners. Notwithstanding that, I think it is safe to assume that the child has normal loving relationships with both parents.
It is clear that the mother accepts that the child has a loving relationship with her father. That is obvious from the fact that she was proposing that the child spend more time the father then he was seeking.
The mother’s partner states that he has grown to know the child very well during the course of his three year relationship with the mother. I accept that evidence, notwithstanding the father’s attempts in cross-examination to downplay the strength of that relationship.
I have no evidence, either positive or negative, about the child’s relationship with the father’s wife. She did not provide an affidavit for these proceedings.
The extent to which the parents have fulfilled their obligations to maintain the child
The mother is clearly of the view that the father does not pay sufficient child support, but that view says more about what she thinks about the inadequacy of the child support assessment formula than any failure on the part the of father to meet his legal obligations. I will be referring to the issue of child support below.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
In my view, this is the most relevant consideration to the issues that I have to determine. Its relevance is in relation to practical difficulty, rather than the expense.
The child’s parents are both employed full-time and they live in different suburbs in greater Melbourne that are approximately one hour apart. That causes difficulties in relation to how the child is to move from the care of one parent to the other when she has contact with her father. That is particularly relevant in the mornings when the child is to leave the care of her father.
The father’s proposal is that there should be a changeover at a shopping centre approximately half way between the parents’ homes at 6:30 a.m. on the relevant day. His proposal also requires the mother to take the child back to her home in order to prepare her for school. It does not surprise me that the father’s proposal has not found favour with the mother.
Much of the father’s rationale for proposing a changeover at a shopping centre at 6.30 a.m. on a school day appeared to relate to his need to be at work on time. His objection to delivering the child to her school appeared to be that he would then need to drive back to a station near his home in order to catch a train to work. When I attempted to explore that issue with him, this exchange took place:
Well, where is the closest train station to her school, assuming she stays at the same school she is at?‑‑‑(omitted).
So you could catch a train from the (omitted) train station?‑‑‑It’s possible, yes.
And drop her off at a reasonable time to get to school, drive to the (omitted) train station, and go to work. Then in the evening, Monday evening, you go back to (omitted), pick up your car and go home?‑‑‑That’s one possible solution.
Hasn’t anybody ever thought about that?‑‑‑I’ve thought about it.
And what are your thoughts about it?‑‑‑I think that there’s – there is no reason that we still cannot meet halfway at a neutral location.
The father was asked in cross-examination: “And you maintain in your evidence that you can’t drop your daughter to school on five occasions per year?” He responded:
It’s not as simple as that. It’s not a case of “can’t” it’s a case of what is fair and reasonable. There is no reason that [the mother] cannot meet me at a halfway location and conduct a contact, pick-up and drop-off. It’s a shared responsibility.[17]
[17] Transcript at page 33
Shortly thereafter the father said that his wife had told him not to agree to a proposal about changeover “because it wasn’t fair and halfway”.[18] I gained the impression throughout the hearing that the father was somewhat fixated upon a need for the parties to meet at a “halfway neutral location” and on more than one occasion I felt it necessary to remind the father that my decision would be based upon the child’s best interests and not upon what is geographically halfway or fair to the adults.
[18] Transcript at page 34
It became quite clear that the father’s wife was influencing his attitude to the parties’ dispute about changeover (notwithstanding that she was not a witness). The mother had indicated during her cross-examination that she would accept an arrangement that the parent’s share the travel by one parent driving the full distance between the parents’ homes at the start of the father’s time with the child and the other parent drive the child back at the end. When I enquired about the father’s attitude to that as a concept, he said:
But the issue is that she … has chosen to use her boyfriend as the courier for pick-ups and drop-offs. My wife also has a say – has some certain rights and certain desire to privacy. She most definitely doesn’t want [the mother’s partner] at our premises. [She] most definitely doesn’t want [the mother] at our premises. I have to respect her right to privacy as well.[19]
[19] Transcript at page 71
The father subsequently said:
The point I want to make is that I do not want [the mother] or any of her agents to come within any distance of where I live. I mean, this is our sanctuary. I’ve got to respect the rights of my wife. I have to live with my wife. I don’t have to live with [the mother]. So, you know, this is not just about me, [the child] and [the mother].[20]
[20] Transcript at page 73
The mother was asked during cross-examination by the father whether she had “put forward any other … halfway neutral locations” for changeover. Her response was:
No. My reasons for not doing so are this. I believe it’s about what’s best for [the child] and I don’t believe that a halfway neutral point is best for [the child]. I have strong feelings that dropping a child off in the car park of Hungry Jack’s, or at a police station, or at a park, or at a community centre is not in her best interests. Or – she’s not a criminal or a victim. Therefore, [she] does not need to attend the police station. She doesn’t need to be left in a park. She’s not an animal. I believe that civil parents should be able to drop their children to each other’s houses; return them to each other’s houses. Or if there is conflict that makes the child feel uncomfortable [or] perhaps one of the parents, that school may well be more appropriate. So I’m not particularly interested in a halfway point. [21]
[21] Transcript at page 68
In my view, that answer clearly showed the mother’s more child-focused attitude to changeovers.
I conclude that the difficulties in relation to changeover are essentially the product of the father’s inflexible attitude. However, it is necessary for me to craft orders that take account of that attitude and still allow the child to spend time with her father. Because the father’s work commitments and his attitude appear to prevent regular changeovers at school or at his home, I conclude that the only option is for him to collect the child from the mother’s home at the start of his time with the child and return her there at the end. The father will clearly be unhappy with that, but it is a solution that is brought about by:
·his unwillingness to have the mother attend at his home (or anywhere near it), and
·his apparent unwillingness to deliver the child to her school at the end of his time.
Nothing in the evidence persuades me that it is in this child’s best interests to be delivered to a shopping centre or any other “neutral location” at 6:30 in the morning. I am therefore of the view that if the parties are unable to agree upon a suitable alternative, the father will have to return the child to the mother’s home at 6:30 p.m. on the evening before school. He will not like that either, because it will shorten his time with the child. However, I note that the mother has been willing to facilitate the child spending more time with the father than he is actually seeking, so the orders that I will make will provide for the minimum time that the child will spend with the father. However, the orders will also allow the parties to agree upon extended or alternate times. The parties will also be able to vary the changeover arrangements by agreement.
As mentioned above, the father is also applying for:
Open communication between [the child] and her father: by her father providing a pre-paid mobile telephone to [the child] so calls can be made and received without being vetted by [the child]’s mother.
In his affidavit he had stated that he wanted to “provide my daughter with a pre-paid mobile telephone, to enable our daughter … to have better communication with me, as the respondent now vets all my calls to our daughter, often not passing on important messages”.[22]
[22] At paragraph 4
The mother’s main concern in relation to telephone contact between the father and the child is that the father has used that as opportunities to discuss matters pertaining to the parents’ dispute with the child. The father was made aware of that in correspondence which is attached to the mother’s affidavit[23] and the mother expanded upon that when she was cross-examined by the father.[24] She concluded her oral evidence in relation to that by saying:
And I’ve made that very clear to you because conversations that ask [the child] how she is, how school is, what’s happening for her are absolutely fine, but conversations that ask a 10 year old to divulge her mother’s information (are) not appropriate.
[23] Annexure “B9”
[24] Pages 63 and 64 of the transcript
The father had been asked questions about his telephone conversations with the child, and he had said:
I tell my daughter what has actually happened. My daughter can make her own assessment. I tell my daughter the truth. One thing that has occurred since our separation is that my daughter has very little information as to what is actually going on. And the one thing I do, when my daughter asks, is if she asks me what is going on in any particular subject, I give her that information if she requests it, and I do so truthfully. This is the situation, if she asks.[25]
[25] Commencing at the foot of page 38 of the transcript
Having read and heard both parties’ evidence, I find that the father has inappropriately discussed matters pertaining to the parents’ dispute with the child. Consequently, I am not prepared to accede to his request to be able to provide the child with a pre-paid mobile telephone.
Is it preferable to make an order least likely to lead to further proceedings?
The parties are clearly in dispute about whether the child should attend a (religion omitted) school or a state school. The mother prefers the former, and the father prefers the latter.
It is quite clear from the evidence that it was a joint decision of the parties in 2009 for the child to attend a (religion omitted) primary school (to which I will refer further below) and the child continues to attend that school. The father is not asking for her to be removed from that school, but he does object to having to pay any of the school fees associated with her attendance at that school. Similarly, his Amended Application suggests that he does not object to her attending a (religion omitted) secondary school if he does not have to pay any of the fees. I conclude therefore that it is unnecessary for me to make any orders about her enrolment at school at this time.
However, I will deal with the question of payment of school fees below, because that is an issue relating to the assessment of child support.
Some of the other orders sought by the mother did not appear to be in dispute, and are frequently made in parenting matters (such as those providing for attendance at school functions, non-denigration, et cetera), so I will make such orders in the hope of preventing any future disputes. However, I do not consider it appropriate to order the father to ensure that the child attends all extracurricular activities during any time that she spends with him. On occasions it may be impractical for her to attend, but the father will only damage his own relationship with the child if he consistently fails to take her to activities that she likes.
The mother also sought an order that the parties do all things necessary for a passport to be issued within 14 days of a request. I made some preliminary comments about that during the hearing, and my view is still that it is inappropriate to make such an order without knowing what travel is planned.
Child Support issues
As mentioned above, neither party was particularly happy with the Child Support Decision of the SCO.
In essence, the father does not wish to be liable for the additional $960 per annum that he is now assessed to pay as his contribution in lieu of school fees. His rationale appears to be that the relevant school principal had agreed not to collect school fees from him (when his financial circumstances were not settled at the time of the parties’ separation). It is clear that the father does not wish to contribute to any additional costs of the child’s education if she continues in the (religion omitted) school system. He expressed it this way:[26]
That any continuation in a private school, including (religion omitted) schooling, to be solely at the cost of the respondent as previously arranged during the period of our physical and financial separation (September 2010 - June/July 2011)
[26] At paragraph 8 of his trial affidavit filed 3 April 2014
It is clear to me that the statement set out immediately above is inaccurate because the arrangement that he made with the child’s school was a suspension of his liability to pay half the fees. It is to the mother’s credit that she has continued to pay her half of the fees.
The mother seeks orders that would continue the child’s education in the (religion omitted) system until the end of her secondary schooling, and that the father pay half of all costs (including extra-curricular activities) direct to the relevant schools.
In her affidavit the mother said:
67. I propose seeking to vary the Child Support decision as I believe the decision has been made on the misunderstanding that I have been meeting the whole of [the child]’s school fees. I do not want to become liable for 100% of her fees. As a consequence of the signed enrolment form [the child’s school] is happy to collect one half of the school fees from each of us and have us remain separately liable for this obligation. I do not want to change this arrangement. The current decision from the Child Support Agency effectively makes me liable for 100% of [the child]’s fees. I do not want to alter the arrangements [the father] and I have had in place since our separation for the payment of [the child]’s school fees.
Normally, the next step in the Child Support process for the parties would be for one or both of them to lodge an objection to the SCO’s decision. (Indeed, the father has done just that in quite emphatic terms in a document dated 24 March 2014 that he forwarded by facsimile message on the same day.)[27]
[27] See Annexure “B” to his trial affidavit.
If an objector is then dissatisfied with the outcome of the objection, he or she may then apply to the Social Security Appeals Tribunal (SSAT). If that party is then dissatisfied with the SSAT decision, he or she may appeal to a Court with jurisdiction, but only on the basis of an error of law.
When this matter came before me for hearing, it was clear that the father’s objection had not yet been determined. I queried whether it was appropriate for the matter to be determined by me and the mother’s counsel sought to persuade me that I had jurisdiction and that it was appropriate for me to determine the child support issue.
Section 123 of Child Support (Assessment) Act 1989 (“the Assessment Act”) provides in part as follows:
(1) An application may be made to a court having jurisdiction under this Act for:
(a) an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b) an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
(2) An application under subsection (1):
(a) may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b) may be made by the carer entitled to child support or the liable parent.
I am satisfied that, in the right circumstances, section 123 would give the court jurisdiction to determine the mother’s application for payment of school fees to the school as they fall due, because such payments would be “child support otherwise than in the form of periodic amounts paid to the carer”. However, I note that the section continues:
(3) Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
In my opinion, it may be stretching matters a little to say that the orders sought by the father in relation to Child Support as set out at paragraph 12 above comprises an application for “Division 4 (departure orders) in relation to the child”. It appears that those orders were simply requested by the father as a reaction to the orders being sought by the mother in relation to payment of school fees. In that regard, I note that the father’s Amended Application was filed two days after the mother filed her Amended Response. Consequently, I do not consider it necessary to have regard to section 116 of the Assessment Act (or to the matters referred to in relation to that section in Kay J’s decision in McGuiness v Cowie).[28]
[28] McGuiness v Cowie (2002) FLC 98-018
I note that section 123 also states:
(4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the carer entitled to child support and the liable parent.
Section 145 of the Assessment Act provides that the Child Support Registrar “may intervene in, and contest and argue any question arising in, a proceeding under this Act”. I note also that Rule 25A.07 of the Federal Circuit Court Rules 2001 provides that applications under the Assessment Act must be served upon the Child Support Registrar at least 28 days prior to the hearing of the application. There are some exceptions under that Rule, but none is applicable in this matter.[29]
[29] See sub-rules (1) and (2)
The father and the mother’s counsel both informed me that the Child Support Registrar (or at least the Registrar’s staff) had been made aware of the applications before the Court, but both statements were from the bar table and not given in evidence.[30] That gives me a substantial concern that the Child Support Registrar has not been properly made aware of the issues in this matter. In my opinion, that is a significant flaw in the process which should cause me not to exercise any jurisdiction under the Assessment Act.
[30] See pages 112 and 114 of the transcript
However, even if I am wrong about that, I conclude that the SCO came to a proper conclusion in her decision of 11 March 2014, in any event.
The SCO concluded from the enrolment document submitted to the child’s primary school in 2009 that the parties had jointly decided to enrol her at that school and that “the costs of maintaining the child are significantly affected because of the costs of caring for, educating or training the child in the way both customers expected”. In my view, that is a perfectly logical conclusion because both parties signed that primary school enrolment document. [31]
[31] See Exhibit “M1”
The SCO said:
Based on the evidence considered above it is clear to see that at the time of [the child]’s enrolment at [the (religion omitted) primary school] that the parents were still in a relationship and both signed the acceptance form so mutually agreed for her to attend the school. [The child] had been attending the school for almost 2 years before the parents separated, again demonstrating their mutual intent.
Such a conclusion was not undermined in the evidence before me, even though the father was prone to be evasive when cross-examined. He clearly tried to avoid answering questions about whether or not he expected the child to be educated in the (religion omitted) school system. At times he gave me the impression that he was deliberately avoiding questions by saying that he did not understand what the mother’s counsel was asking. At one point, I suggested that the question could be put quite bluntly; if he and the mother were still together and earning what they currently earn, would the child still be at a (religion omitted) school? He responded: “I can’t answer that question. I don’t know.” I concluded that he was being deliberately evasive in that answer, because he knew that an affirmative answer would not support his case.[32]
[32] At page 22 of the transcript
The SCO also said:
I will not extend the fee contribution past primary school because [the father] has made it clear that he is happy for [the child] to attend a public school in the future, so unless he agrees for [the child] to attend a (religion omitted) high school, e.g. by signing a new enrolment form, it will be assumed there is no mutual intent and he will not be liable for secondary school fees if [the mother] chooses to continue [the child]’s (religion omitted) school education.
The evidence before me does not support a mutual intention to enrol the child in a (religion omitted) secondary school. When she was cross-examined, the mother appeared to concede that she and the father had not discussed the child’s secondary schooling in the (religion omitted) education system. This exchange took place:
Father: Is it correct that we have never had a conversation about [the child]’s schooling apart from primary school?
Mother: It is correct that we have always talked about the standard of schooling. There was no – there was no end date to that.
Father: Have I ever spoken to you about [the child] going to (religion omitted) secondary school?
Mother: No. You have let Child Support know that you don’t want to pay any fees for (religion omitted) secondary school. That’s what you have had by way of conversation.
The SCO had been told by the mother that child’s school fees for 2013 were $2,000 and the father had not disputed that figure. In my view it was therefore appropriate for the SCO to apply the percentage figures that she did to that sum. It was also appropriate to apply CPI increases to future years.
The mother may “not want to become liable for 100% of [the child’s] fees” but that must be the logical and morally correct outcome if she is to receive the additional Child Support as determined by the SCO.
In the circumstances, I will dismiss all applications in relation to Child Support.
Procedure
I heard this matter in Melbourne but I will be delivering this decision in Tasmania. My Associate will make arrangements to provide copies of these Reasons and the Orders to the father and the mother’s lawyers by mail or by electronic means.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 3 September 2014
[1] (omitted) is a form of Mathematics tuition attended by the child – see paragraph 70 0f the mother’s affidavit 1 April 2014
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