Castaneda & Castaneda
[2023] FedCFamC1F 1017
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Castaneda & Castaneda [2023] FedCFamC1F 1017
File number(s): SYC 8412 of 2021 Judgment of: ALTOBELLI J Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – PARENTING – Where each party seeks the children live with them and spend significant and substantial time with the other parent – Where a child has special needs – Where the mother has always been the primary carer – Allegations made by the father that the mother has mental health issues – Family violence allegations – Children’s schooling – It is ordered that the children live with the mother and spend time with the father.
FAMILY LAW – PROPERTY – Where the father is employed as a professional and has always had a high income earning capacity – Discussion of post-separation contributions – Where the father has significant financial resources – It is ordered that an adjustment be made in favour of the mother for future needs.
FAMILY LAW – SPOUSAL MAINTENANCE –Where the father has capacity to pay – Where it is found the mother is in need of spousal maintenance.
FAMILY LAW – CHILD SUPPORT ORDERS – Application for departure from the administrative assessment of child support made pursuant to Child Support (Assessment) Act 1989 (Cth) s 116.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 74, 75, 79
Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bilts & Broigalman [2013] FamCA 578
Carter & Wilson [2023] FedCFamC1A 9
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
F v M [2021] EWFC 4
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Illgen & Yike [2018] FamCA 17
Marsh & Marsh (2014) FLC 93-576; [2014] FamCAFC 24
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Ramzi & Moussa [2022] FedCFamC2F 1473
Re G: Children’s Schooling (2000) FLC 93-025; [2000] FamCA 462
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 205 Date of last submission/s: 29 September 2023 Date of hearing: 25-29 September 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Rebehy Solicitor for the Respondent: Brigid Justice Ltd ORDERS
SYC 8412 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CASTANEDA
Applicant
AND: MS CASTANEDA
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT NOTES THAT:
A.The following definitions apply for the purposes of these orders:
(a)“the children” means Y and X collectively;
(b)“Family Dogs” means the parties’ family dogs;
(c)“the Father” means Mr Castaneda;
(d)“Y” means Y born 2013;
(e)“X” means X born 2011;
(f)“the Mother” means Ms Castaneda;
(g)“non-school day” means a public holiday or any other day that the children are not required to attend school during any particular school year;
(h)“parent” means Mr Castaneda and/or Ms Castaneda;
(i)“parties” means Mr Castaneda and Ms Castaneda;
(j)“school” means any primary or high school that X or Y is enrolled in and attends; and
(k)“Suburb D property” means the property known as and situated at C Street, Suburb D in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier ….
THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
Parental Responsibility
2.The Mother and the Father have equal shared parental responsibility for all major long‑term decisions regarding the children which includes the children's health, education, religious and cultural upbringing and any changes in living arrangements which make it significantly more difficult for the children to spend time with a parent.
3.The Mother and the Father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are in his/her respective care.
Time
4.The children live with the Mother, conditional upon her continuing to attend counselling/therapy with and follow the recommendations of her mental health practitioners in relation to her emotional and mental health.
5.Unless otherwise agreed between the parties in writing, the children spend time with the Mother and the Father during school terms, on a fortnightly basis, as follows:
(a)In Term 1, 3 and 4, on a fortnightly basis:
(i)In week one:
A.With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;
B.With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Monday;
(ii)In week two:
A.With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;
B.With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Friday;
C.With the Mother from 3.00 pm or the conclusion of school on Friday to 3.00 pm or the conclusion of school on Monday;
(b)In Term 2, on a fortnightly basis:
(i)In week one:
A.With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday;
B.With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Friday;
C.With the Mother from 3.00 pm or the conclusion of school on Friday to 3.00 pm or the conclusion of school on Monday;
(ii)In week two:
A.With the Mother from 3.00 pm or the conclusion of school on Monday to 3.00 pm or the conclusion of school on Thursday; and
B.With the Father from 3.00 pm or the conclusion of school on Thursday to 3.00 pm or the conclusion of school on Monday.
6.Unless otherwise agreed between the parties in writing, the children spend time with the Mother and the Father during the school holiday periods, as follows:
(a)For the Term 1 school holiday period:
(i)With the Mother, for the first 13 nights of the school holiday period, with changeover to occur at 3.00 pm on the day after the 13th night;
(ii)With the Father, from 3.00 pm on the day after the 13th night of the school holiday period until the conclusion of school on the first day of Term 2 that either or both the children are required to attend;
(b)For the Term 2 school holiday period:
(i)With the Father, for the first 13 nights of the school holiday period, with changeover to occur at 3.00 pm on the day after the 13th night;
(ii)With the Mother, from 3.00 pm on the day after the 13th night of the school holiday period until the conclusion of school on the first day of Term 3 that either or both the children are required to attend;
(c)For the Term 3 school holiday period:
(i)With the Father, for the first half of the school holiday period;
(ii)With the Mother, for the second half of the school holiday period, until the conclusion of school on the first day of Term 4 that either or both the children are required to attend; and
(iii)Changeover will occur at 3.00 pm on the middle day of the school holiday period, and if there is no middle day, the children are to spend an additional day with the Mother.
7.For the Term 4 school holiday period, unless otherwise agreed between the parties in writing, the children spend time with the parties as follows:
(a)With the Mother from the commencement of the school holiday period until 3.00 pm on Christmas Day in even-numbered years, or until 3.00 pm on Christmas Eve in odd-numbered years;
(b)With the Father from 3.00 pm on Christmas Day until 3.00 pm on New Years Day in even numbered years or 3.00 pm on Christmas Eve until 3.00 pm on New Years Eve in odd numbered years;
(c)With the Mother from 3.00 pm on New Years’ Eve in odd-numbered years or from 3.00 pm on New Years Day in even-numbered years until 3.00 pm on 10 January;
(d)With the Father from 3.00 pm on 10 January until 3.00 pm on 24 January; and
(e)With the Mother from 3.00 pm on 24 January until the end of the school holiday period.
8.For the purpose of implementing these orders:
(a)School holidays commence at 3.00 pm on the last day of each school term that either or both the children are required to attend school;
(b)Week one is defined as the first week of each school term that either or both the children are required to attend school one or more days; and
(c)In the event there is a discrepancy between X and Y’s academic calendars, the parenting arrangements will be determined by X’s academic calendar.
9.Notwithstanding the above orders, the children spend time with the Mother and the Father as follows:-
(a)With the Mother:
(i)On Mother’s Day from 10.00 am until 3.00 pm or the conclusion of school on Monday;
(ii)On the children’s birthdays, from 3.00 pm or the conclusion of school on the day before the child’s birthday until 3.00 pm or the conclusion of school on the child’s birthday;
(iii)On the Mother’s birthday, from 3.00 pm or the conclusion of school on the day before the Mother’s birthday until 3.00 pm or the conclusion of school on the Mother’s birthday;
(iv)On Thanksgiving, in odd-numbered years, from 3.00 pm or the conclusion of school until 3.00 pm or the conclusion of school the following day.
(b)With the Father:
(i)On Father’s Day from 10.00 am until 3.00 pm or the conclusion of school on Monday;
(ii)On the children’s birthdays, from 3.00 pm or the conclusion of school on the child’s birthday until 3.00 pm or the conclusion of school the following day;
(iii)On the Father’s birthday, from 3.00 pm or the conclusion of school on the day before the Father’s birthday until 3.00 pm or the conclusion of school on the Father’s birthday;
(iv)On Thanksgiving, in even-numbered years, from 3.00 pm or the conclusion of school until 3.00 pm or the conclusion of school the following day.
(c)And at such other times as agreed between the parties.
10.All changeovers which do not occur at school or Outside School Hours Care (“OSHC”) shall occur at the Mother’s home at the commencement of the Father’s time with the children, and at the Father’s home at the commencement of the Mother’s time with the children.
11.Both parents are at liberty to attend the children's extra-curricular activities, performances or sporting games notwithstanding the care arrangements above.
Schooling
12.Unless otherwise agreed between the parties in writing:
(a)X shall attend E School, commencing Year 7, 2024; and
(b)Y shall attend E School commencing in Year 7, 2025.
Travel
13.The Mother and the Father are at liberty to travel interstate within Australia with the children during any periods that the children are living with them pursuant to these orders, or otherwise as agreed between the parties in writing, and that the travelling parent shall provide to the non-travelling parent notice of at least four days prior to the intended travel taking place written notice and available details of the proposed trip including travel dates, flight/transport details, accommodation and contact telephone number during the trip.
14.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”), the Mother and the Father shall be permitted to travel overseas with the children during any periods that the children are living with them pursuant to these orders, or otherwise as agreed between the parties in writing, provided that there is full compliance with the following:
(a)The travelling parent shall provide to the non-travelling parent at least 21 days’ written notice prior to the intended departure date for the travel, with written details of the following:
(i)The names and places outside of the Commonwealth of Australia where it is proposed that the children will travel;
(ii)The proposed travel dates and itinerary of travel, including departure and arrival dates to and from each country to which it is intended travel occur; and
(iii)Contact details whilst the children are outside the Commonwealth of Australia including telephone numbers and addresses of all places where it is proposed the children will be staying overseas.
(b)If the travelling parent has given written notice in accordance with these orders, the non-travelling parent shall release the children's passports to the travelling parent (if necessary) in accordance with Order 15, and the non-travelling parent shall sign all documents necessary for the children to travel with the travelling parent, including any visa applications.
15.Notwithstanding the above Order 14, in the event of a family emergency:
(a)The Mother and the Father are at liberty to travel overseas with the children on short notice and shall inform the non-travelling party as soon as practicable;
(b)In the event such urgent travel falls within the non-travelling party's usual time with the children pursuant to these orders, then the travelling parent shall arrange make-up time on days and times as agreed between the parties and within six months from the day of return from such travel; and
(c)For the purpose of this order, family emergency is defined as serious illness including any diagnosis of such serious illness, serious injury or death in the children's immediate family.
16.In respect of the children's passports:
(a)In respect of the children's Australian passports:
(i)The Father will commence all processes required to obtain inaugural Australian passports for the children within 14 days of these orders being made;
(ii)Each party will take all steps necessary to secure inaugural Australian passports for the children; and
(iii)The processes and costs of obtaining or renewing the Australian passports shall be managed by the Father;
(b)In respect of the children’s American passports:
(i)Each party will take all steps necessary to renew the children’s American passports by no later than six months prior to the expiry date; and
(ii)The processes and costs of renewing the American passports shall be managed by the Mother;
(c)The Father shall hold X’s Australian and American passports and:
(i)The Father shall provide X’s passport/s to the Mother within 14 days of a confirmed departure date for the purposes of the children’s overseas travel pursuant to Orders 14 and 15; and
(ii)The Mother shall return X’s passport/s to the Father within 14 days of returning to Australia, or at the first in-person changeover of the children, whichever comes first.
(d)The Mother shall hold Y’s Australian and American passports and:
(i)The Mother shall provide Y’s passport/s to the Father within 14 days of a confirmed departure date for the purposes of the children’s overseas travel pursuant to Orders 14 and 15; and
(ii)The Father shall return Y’s passport/s to the Mother within 14 days of returning to Australia, or at the first in-person changeover of the children, whichever comes first.
Communication
17.The Mother and the Father shall communicate exclusively via the Our Family Wizard (or other agreed parenting application), unless for emergency situations.
18.Each parent be permitted to reasonably communicate with the children by telephone, text message, email or any other electronic means save and except on changeover days unless for emergencies or urgent matters. For this purpose, the parties will provide a restricted use mobile phone device to the children or a device to each child for the purpose of communicating with the children and nothing in this order prevents the children from communicating with either parent at any reasonable time.
19.Each parent be restrained by injunction from:
(a)Denigrating or defaming the other parent, or members of the other parent's family:
(i)to the children; or
(ii)in the presence of the children; or
(iii)via social media; or
(iv)to the other parent's family, friends or colleagues; or
(v)in any way which may impact the other parent’s profession and/or employment.
(b)Discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings;
(c)From passing denigrative or negative information or messages through the children to the other parent; and
(d)On a without admissions basis, physically disciplining the children.
20.Each parent shall be permitted to liaise directly with any doctor, hospital or other medical practitioners treating the children to obtain information about the physical and/or mental health of the children and the progress of any treatment he or she may be receiving, and that these orders authorise the release of such information, including copies of any medical reports, to each of the parties.
21.The parties must notify the other parent as soon as practicable of any serious medical problems or illnesses suffered by the children whilst in their care, including but not limited to, details of any treating medical practitioners and any medication prescribed for the children.
22.Each party will keep the other informed of their current residential address, a telephone number and an email address and will otherwise advise the other party of any change to those details, at least seven days prior to any change in residential addresses and within 24 hours of any changes to telephone number and email address.
Property and Spousal Maintenance
23.The Father pay to the Mother spousal maintenance in the amount of $3,000 per month for a period of three years from the date of these orders, with such payment to be made into the Mother’s nominated bank account on the 17th day of each month.
24.Until compliance with Order 25(a) of these orders:
(a)The Father shall pay, by way of further spousal maintenance, as and when they fall due, the monthly mortgage repayments for the Suburb D property; and
(b)The Father is restrained from further encumbering his interest in the Suburb D property; and
(c)The Mother is declared to have a caveatable interest in the Suburb D property.
25.By way of alteration of property interests, no later than 31 December 2024, the Father is to do all things necessary to:
(a)Pay off, in full, and discharge the mortgages secured on the title of the Suburb D property (namely F Bank Home Loan #...64 and F Bank Home Loan #...65); and
(b)Pay the sum of $147,287.90 to the Mother.
26.Within seven days of compliance with Order 25 of these orders, the following shall occur simultaneously:
(a)The Father and the Mother shall do all acts and things and sign all documents necessary to transfer to the Mother all his right, title and interest in the Suburb D property, at the Mother’s sole cost; and
(b)The Mother shall indemnify and keep indemnified the Father in respect of all mortgage repayments and outgoings with respect to the Suburb D property.
27.The Mother have exclusive occupation of the Suburb D property.
Joint accounts and retirement funds
28.Within seven days, the parties are to do all acts and things necessary to contact G Investments to remove the stop transfers from the following G Investments Retirement and Non-Retirement accounts so that full account access and transaction authority is restored to enable the parties to implement these orders:
(a)Roth IRA Acct #...16 held in the name of Mr Castaneda;
(b)Traditional IRA #...96 held in the name of Mr Castaneda;
(c)Traditional IRA #...51 held in the name of Mr Castaneda; and
(d)Non-Retirement Fund #...35 held jointly in the names of Mr Castaneda and Ms Castaneda.
29.Within 21 days of the date of these orders, the parties shall do all things necessary to transfer the joint account G Investments #...35 Growth & Income Fund (Non-Retire) into the Father’s sole name.
Family dogs
30.Within 30 days of the date of these orders, the parties do all acts and things necessary to ensure that the Family Dogs are registered to, possessed by and owned solely by the Mother.
General orders
31.Subject to the above orders, the Mother shall retain all interests in, and entitlement to:
(a)All personal and real property now in her respective possession or control;
(b)All superannuation interests in her possession or control; and
(c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively and all interests in life insurance policies and superannuation funds standing in her sole name respectively.
32.Subject to the above orders, the Father shall retain all interests in, and entitlement to:
(a)All personal and real property now in his respective possession or control;
(b)All superannuation interests in his possession or control;
(c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively and all interests in life insurance policies and superannuation funds standing in his sole name respectively; and
(d)All financial resources including future shares and rights granted pursuant to employee share schemes.
33.The Mother is hereby declared solely liable for all liabilities in her sole name respectively and shall indemnify and keep indemnified the Father in respect of same.
34.The Father is hereby declared solely liable for all liabilities in his sole name respectively and shall indemnify and keep indemnified the Mother in respect of same.
35.Both the Father and the Mother hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
36.Each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
37.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
THE COURT FURTHER NOTES THAT:
B.In his affidavit filed 4 September 2023, the Father deposes to his intention to meet 100 per cent of the children’s private health insurance premiums and out of pocket medical, optical and dental expenses, all school-related expenses and agreed extracurricular activities.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Castaneda & Castaneda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between two parents about their children, and about the division of their property. The first part of these reasons will deal with parenting, and the second with property and financial issues.
BACKGROUND
The father is the applicant in this case (“the father”). He is 46 years old and describes himself as a professional at B Pty Ltd. The mother is the respondent in this case (“the mother”). She is 42 years old and is currently employed as a manager on a temporary contract but has been unemployed for most of the relationship. The parties commenced cohabitation in 2003 or 2005 in City H, United States of America (“USA”), and were married in 2006. The parties relocated to City J, United Kingdom in 2010 and then to Sydney, Australia in 2013 due to the father’s career opportunities. The parties separated on a final basis in January or February 2021. Both parties are dual citizens of the USA and Australia.
The parties have two children: X who is 12 years old and Y who is 10 years old (“the children”). Pursuant to consent orders made on 14 December 2021, the children currently live with the mother in the former matrimonial home in Suburb D (“the Suburb D property”) and spend time with the father for five nights each fortnight at his home in Suburb K. It is an undisputed fact that throughout the marriage, the father was the primary income earner and the mother was the primary carer of the children and responsible for the household.
Ms L (“the Expert”) was appointed to prepare an Expert Report which is dated 1 August 2022 (“the Report”).
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relies on the following documents:
(1)Amended Initiating Application for Final Orders filed 28 November 2022;
(2)His affidavit filed 4 September 2023;
(3)Affidavit of Ms M filed 4 September 2023;
(4)Affidavit of Mr N of P Valuers filed 25 September 2023;
(5)Affidavit of Mr Q filed 25 September 2023;
(6)Financial Statement filed 4 September 2023;
(7)Single Expert Report of Ms L dated 1 August 2022;
(8)Case outline filed 22 September 2023; and
(9)Various documents tendered during the proceedings, marked Exhibits A1–A21.
In support of her case, the mother relies on the following documents:
(1)Amended Response to Final Orders filed 23 February 2022;
(2)Her affidavit filed 5 September 2023;
(3)Financial Statement filed 6 September 2023;
(4)Case outline filed 24 September 2023; and
(5)Various documents tendered during the proceedings, marked Exhibits R1–R19.
Further, the Minute of Order with the agreed orders and the updated joint balance sheet were tendered by the Court as Exhibit CA and Exhibit CB respectively. The Court has further tendered Dr R’s subpoenaed material as Exhibit CC and the joint balance sheet with the updated share values for B Pty Ltd received on 13 November 2023 as Exhibit CD.
THE COMPETING PARENTING PROPOSALS
This is a case where the evolution of the parties’ parenting proposals is relevant. In his first Initiating Application filed 15 November 2021, the father sought orders that the children spend equal time with the parents. Then, one year later on 28 November 2022, the father filed an Amended Initiating Application seeking orders that the children live with him for nine nights per fortnight and with the mother for five nights per fortnight (which remains the arrangement he seeks before me). In the mother’s Response for Final Orders filed 10 December 2021, she sought orders that the children live with her and spend time with the father for four nights per fortnight. On 7 October 2022, she filed an Amended Response for Final Orders which seeks orders for the children to spend time with the father for five nights per fortnight (which remains the arrangement she seeks before me).
By the time of closing submissions, the Court received an updated Minute of Order sought from both parties. The agreed orders were made by consent on 27 September 2023 and can be summarised as follows: the parties are to have sole responsibility for making decisions about day to day care, welfare and development of the children when they are in their care (although parental responsibility for major long-term issues is not agreed); during school terms, the children are to live with each party in alternating weekends (although the live with arrangement during the week is not agreed); the children are to spend time with each party for half of the Term 1, 2 and 4 school holidays (Term 3 school holidays are not agreed); specific provisions for special occasion time including Mother’s Day, Father’s Day, the children’s birthdays, Thanksgiving, the mother’s birthday, and the father’s birthday; changeovers are to occur at school or otherwise at the party’s home who’s time is commencing; the parties are at liberty to travel interstate and overseas with the children; each party will do all things to obtain Australian passports for the children; the father will hold X’s Australian and American passports and the mother will hold Y’s Australian and American passports; the parties are to communicate exclusively via the Our Family Wizard app; each party is permitted to reasonably communicate with the children save and except on changeover days; and the parties are to keep each other informed of the children’s medical information and each other’s residential address and contact information.
With respect to the orders that are not agreed, the father seeks for the parties to have equal shared parental responsibility for the children. He further seeks that the children live with him for nine nights per fortnight (in week one from Monday after school until Wednesday after school and from Friday after school until Friday after school in week two) and live with the mother at times they are not living with him. For the purposes of the Term 3 school holiday period, the father seeks that the children are to spend time with the father for the first half and the mother for the second half until the conclusion of school on the first day of Term 4. The father also seeks that X attend S School and if he is unable to attend that school, then T School commencing Year 7 in 2024. Y is to attend T School commencing Year 7 in 2025. In the alternative, the father seeks sole parental responsibility with respect to the children’s education. In terms of overseas travel, the father seeks that the travelling parent provide at least 21 days’ written notice. He further seeks that the parties be restrained from denigrating or defaming the other party via social media, to the other party’s family, friends or colleagues and in any way which may impact the other party’s profession and/or employment.
The mother seeks sole parental responsibility for decisions relating to the children’s health and education. She further seeks that the children live with the father for five nights per fortnight (in week one from the conclusion of school on Thursday until the conclusion of school on Monday and in week two from the conclusion of school on Thursday until the conclusion of school on Friday) and live with the mother at times they are not living with him. For the purposes of the Term 3 school holidays, the mother seeks that the children spend time with the father for the first half in odd-numbered years and the second half in even-numbered years. With respect to overseas travel, the mother seeks that the parties give the non-travelling parent at least 60 days’ written notice.
APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Coercive Control
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act. However, these words are not defined in the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ and Campton J in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
PRELIMINARY ISSUES AND FINDINGS
There are some preliminary issues in this matter that need to be recognised.
After X was born in 2011, the mother suffered from post-natal depression and commenced seeing psychiatrist Dr U in City J. She was prescribed anti-depressants and presently takes medication daily (mother’s affidavit at paragraph 115). In 2012, she was diagnosed with a medical condition which she says includes symptoms of depression, anxiety and weight gain (paragraph 116). The mother contends that she is vulnerable to depression and anxiety and this was heightened during the marriage due to the father’s alleged coercive and controlling behaviour (paragraph 113). However, post-separation, she was able to lower her medication for anxiety with the help of her clinical psychologist, Mr V. In or around October 2021 when the parenting dispute intensified, the mother deposes to a resumption of taking anxiety medication as needed (paragraph 122). She says her anxiety is manageable and has not interfered with her parenting capacity. Her last appointment with Mr V was in mid-2022 before he took extended leave and she will re-commence sessions with him if and when needed (paragraph 123). The mother states that in the meantime, her anxiety and depression is being monitored by her GP Dr R. Apart from the reference to coercive and controlling violence and the mother’s contention that her anxiety does not interfere with her parenting capacity, none of this evidence is disputed by the father.
At paragraph 115 of the Report, the Expert details the mother’s mental health vulnerabilities. The Expert states the mother has a “long and documented history of psychological dysfunction and vulnerability in response to multiple traumatic events” and she does not appear to have had “prolonged periods of psychological stability” since X’s birth. The mother reported she is currently experiencing some depressive and anxiety symptoms and disclosed recent suicidal ideations. The Report also outlines that medical documents show the children “feed off” her when her mental health deteriorates, and the mother has been advised that psychological therapy is the best course of treatment in the long term. This evidence was not challenged.
Counsel for the father submitted there are ongoing concerns for the mother’s mental health and parenting capacity. He emphasised there are no therapeutic supports that the mother currently engages with on a regular basis (since Mr V went on extended leave) even though the Report highlights it would be to her benefit. He contends that the mother has elected not to request a mental health assessment from Mr V or Dr R to advise the Court of her current condition. The father states the medical records in evidence are outdated and do not deal with the mother’s current mental health. The mother disputes this as she is still currently seeing Dr R. In cross‑examination, counsel for the father questioned the mother as to what supports she has available to enhance her mental health. She responded that she has “a lack of abusive husband in the house”, she takes anxiety medication as prescribed by Dr R, she has a loving community in the recreational club, the children’s primary school and in her local area, a deeply supportive relationship with her mother and her sister, Dr R for any medication needs and Mr V on an as‑needed basis.
Subpoenaed records produced on 22 April 2022 by Dr R (Exhibit CC), show the mother attended on her on 21 March 2022 to discuss her mental health and medication. Dr R was not subpoenaed again so the Court does not have any recent corroborative evidence as to whether the mother is still attending upon her for ongoing management. The mother appears to be managing her mental health well. There is no reason to dispute her evidence that she is attending on her doctor for ongoing management, nor is there any reason to draw an adverse inference in this regard because Dr R’s records were not the subject of an updating subpoena.
The father deposes about the mother’s “escalating” level of volatility due to her mental health and its impact on the children from paragraph 92 of his affidavit. The post-separation allegations include the children reporting to him that the mother has hit them, yelled at them and locked them out of the house when it was raining (paragraph 94). The father further alleges that the children are concerned, fearful and anxious because of the mother’s parenting style and behaviour (paragraph 95). However, this is not only inconsistent with the Expert’s evidence (as will be discussed in further detail below), but also plainly inconsistent with the father’s own proposal for unsupervised substantial time with the mother.
It is also important to note that the mother is currently employed in a full-time position with a salary of $92,456. She is currently maintaining this position while she has primary care of the children, including at least one child with special needs. It is difficult for the Court to make a finding that the mother’s mental health is dysfunctional and volatile when she is clearly juggling multiple priorities and managing them well. The father himself tendered school reports of the children (Exhibit A10) which generally state the children are “vibrant and enthusiastic” and excelling academically. Exhibit A10 also does not raise any concerns about dysregulation or the “anxiety and distress” described by the father (paragraph 92 of his affidavit). The Expert also states at paragraph 103 of the Report that the children are “happy, settled and content” in the current arrangement.
However, the Expert raised concerns in the Report and during her cross-examination about the impact on the mother’s mental health and the negative effect on her parenting and coping capacity if the father were to assume primary care of the children. This will be a factor in the Court’s consideration into the children’s parenting arrangements below.
X has a diagnosis of Autism Spectrum Disorder (“ASD”), with several secondary conditions including Generalised Anxiety Disorder, ADHD, and physical medical conditions. The Expert states at paragraph 121 of the Report that each parents’ acceptance of the diagnosis and management of X’s ASD is one of the most critical issues in the matter. The Expert goes on to say that it “is critical that there is minimum disruption to his usual routine and that his needs are the focus and not the needs of the adults in his life”.
Whilst the parties agree about X’s diagnosis, they dispute his current needs. The father raises concerns that the mother is exaggerating X’s needs in the proceedings, presumably to diminish his case that he can provide for X’s needs whilst balancing his work commitments. Currently, X is enrolled in several sports, extracurriculars and other ad hoc activities that occur on approximately six days per week, although some activities are flexible. It is clear X has a very busy and regimented weekly life. At paragraph 86 of her affidavit, the mother states that the father accused her of arranging more extra-curricular activities to make it more difficult for him and she contends this assertion “reflects his lack of understanding of the children’s established schedules and his tendency to prioritise his own needs over theirs”.
The Court finds that the routine and high volume of activities for X is a consequence of his developmental needs rather than parental or child preference. In Exhibit R5, paediatrician Dr W lists the extracurricular activities that X has been engaged in since diagnosis. It is most likely the case that X has been engaged in these activities as part of therapeutic intervention. It seems that although some of his current extracurricular activities are not autism-specific, they are a continuation of activities he has enjoyed and create a routine beneficial to his needs. It is noted that Exhibit R5 is a letter by Dr W somewhat based on Exhibit A6 (a draft letter from the mother written in Dr W’s perspective). However, the Court accepts the legitimacy of the letter to the extent that it relates to the activities X has been engaged in since diagnosis. The father also did not dispute this.
The parties are also in dispute about Y’s needs and mental health. This appears to be a major reason why the mother seeks sole parental responsibility for the children’s health. The mother alleges Y has had anxiety and possible ADHD and other behavioural disorders. The father’s case is that Y is neurotypical and does not have any special needs. In late 2020, the mother wished to obtain a paediatric assessment for Y after receiving a report from the school psychologist on 2 July 2020 (Exhibit R6). This exhibit is a questionnaire-style report completed by a teacher and parent during the COVID-19 lockdown when all children were homeschooled. The mother deposes this is the first time she noticed Y struggling with attention and her learning. In relation to hyperactivity and impulsivity, the mother gave Y a rating of “average” whilst the teacher gave a rating of “very elevated”. Therefore, the mother wished to obtain a paediatric assessment in relation to Y’s hyperactivity. The father ultimately did not consent to the assessment and the appointment did not occur. The mother argues there would have been no harm in getting Y assessed and the father’s position is that the mother has exaggerated the concerns.
At paragraph 100 of the Report, the Expert details a phone call she had with Ms Z, the principal at AA School. She is recorded as saying that although there are no significant red flags raised in relation to Y’s concentration, “an ADHD assessment would not hurt”. In cross-examination, the father’s responses in relation to this were vague. When it was put to him that Y’s teacher identified more concerns about her than the mother did, the father responded “it’s impossible for me to say”. When it was put to him that Y has had issues with anxiety in the past and there would have been no harm in having her assessed, the father responded “I’m not sure I agree”. Given the father’s lack of clarity around his assertions, the Court is inclined to accept the mother’s contention that there would have been no harm in getting Y assessed. The Court also finds that Exhibit R6 identified more issues with Y than the mother did (therefore she did not exaggerate concerns in relation to Y).
An issue in relation to the children’s needs in this matter is their routine and involvement in extracurricular activities. The father criticises the mother for unilaterally increasing the children’s extracurricular activities and argues it is too much for the children. If the children are put into his primary care, his proposal would be to reduce the number of extracurricular activities after consultation with the children to see what they enjoy. Currently, the children are scheduled to have one or more extracurricular activities from Monday to Thursday between the hours of 3.30 pm and 6.00 pm. The Court is concerned that if the children are placed into the father’s primary care, it will be difficult for the father to facilitate this many activities given his employment (although he alleges he can leave work at 2.00 pm on days he has the children).
The father holds a senior position with B Pty Ltd. Regarding his work commitments, the father says he is flexible in the hours he works and can work from home when necessary (paragraph 117). As he has been working for B Pty Ltd since 2013, he has the flexibility to care for the children on school days and during school holiday periods to facilitate the children’s extracurricular activities whilst they are in his care (paragraph 117). In cross-examination, the father stated that his workday is generally from 9.00 am to 5.00 pm on days that he does not have the children and he finishes at 2.00 pm on days that he does have the children. He further stated that other than “occasionally” checking emails at night and on the weekends, he does not have any further responsibilities outside of the work hours he has already detailed. The Court is sceptical that the father will be able to finish work at 2.00 pm on seven days out of ten business days each fortnight if the children are in his primary care. It is further noted that in the mother’s medical records that have been subpoenaed (Exhibit R4), she is recorded as telling the general practitioner on 29 February 2016 and 23 June 2017 that the father works long hours. The father has not convinced the Court that his remuneration is consistent with the flexibility in working hours that he asserts. The evidence about his renumeration package is discussed below in the context of the financial aspects of this case. This evidence indicates that he is a key employee, held in high regard, and tasked with significant and onerous corporate responsibilities which are inimical to the asserted flexibility of his employment.
Further, the mother makes allegations that the father has been controlling and emotionally, verbally and financially abusive throughout the relationship. In late 2021, the mother made reports to the police and a provisional Apprehended Domestic Violence Order (“ADVO”) was issued against the father for the protection of the mother. In late 2022, the charges were dismissed by the Local Court Magistrate and the father consented to entering an ADVO on a without admissions basis for six months.
CREDIT ISSUES
Counsel for the father submitted the mother was unresponsive and used highly emotional language when giving evidence. The Court accepts the mother was also given warnings on at least two occasions to answer the question asked. However, the litigation was difficult for both parents and the emotional impact was more apparent with the mother. In assessing her credibility, the Court cannot ignore her mental health history and her lived experience and assertion that the father has been coercive and controlling throughout the relationship. The mother was indeed frequently unresponsive, and sometimes argumentative, in cross‑examination but, because of the issues identified above, no broad finding about credibility will stem from this. The Court agrees that her emotions often permeated the evidence, but likewise no broad finding about credibility follows this. She was a poorer historian than the father. The mother’s evidence about financial matters, particularly expenses, was confusing. Both parents were prone to minimise their own parental deficiencies but maximise that of the other parent.
SECTION 60CC PRIMARY AND ADDITIONAL CONSIDERATIONS
Meaningful Relationship
In this matter, the Court finds that the children have a meaningful relationship with both parents and will continue to enjoy the benefit of it on either of the proposals before the Court. This is to the credit of both parents in the context of a high conflict post-separation relationship. The Expert also stated that the children appeared to have a “loving and affectionate relationship” with both parents (paragraphs 106–107 of the Report).
Risk Of Harm
The father’s case for risk of harm to the children, and his main argument for primary care, is centred around the risk of the mother’s emotional dysregulation in the presence of the children whilst in her care. Brief episodes of the mother’s emotional dysregulation were apparent to the Court during the hearing. The Expert emphasised the need to model good emotions in the household, particularly for X who relies on his parents to co-regulate and learning to self‑regulate (paragraph 124 of the Report). The Expert concludes that the parent who has the most capacity for emotional regulation will be best placed to take on the primary carer role for the children. The Court accepts that this is one factor for it to consider.
The father also relies on paragraph 125 of the Report which states as follows:
…If [Mr Castaneda] can be sensitive to the children, structure his employment around the children so there is routine, and he is emotionally competent and able to regulate his emotions and if [Ms Castaneda] is unable to regulate her mood and emotions and is unable to stop projecting her anxiety onto the children, particularly [X], this would be detrimental to the children and impair the children’s functioning and increase their vulnerability for anxiety. It would be emotionally detrimental to [Ms Castaneda] and significantly impact on her mental health if she were to lose primary care of the children, however the children’s need for routine and a stable and emotionally regulated home environment must take precedence. [Y] will also likely resent [Ms Castaneda’s] approach to disciplining the children if she feels a sense of injustice in being disciplined in line with [X] when it is not warranted.
The father referred to examples of the mother lacking the ability to control her own conduct, with particular attention on her behaviour around the mediation held in November 2021 and her Facebook posts. On the morning of the mediation, the mother sent an email to the paternal grandparents which was tendered and marked Exhibit A2. The email attaches a photograph of a DVD allegedly found in the children’s playroom and the body of the email reads as follows:
…hopefully you can ask your son if he is a paedophile, and why he is turned on by watching men his own age have girls not much older than his daughter perform degrading sex acts on them.
He just spent a college education on legal fees fighting the nurturing mother of his children this week. You have a lot to be proud of. Well done. You belong in a Hall of Fame.
When cross-examined about this, the mother maintained that she sent the email out of a “pure intent” and concern that the father might be a paedophile. However, when it was put to her that despite her concern that the father was a paedophile, she was happy for him to have the children three nights per week, she was unable to provide the Court with an adequate answer. A few days later, the mother sent an apology email to the paternal grandparents. Counsel for the father submitted that the first email is an example of an uncontrolled emotional outburst by the mother when she was displeased with the mediation. Further, the mother gave evidence that she found the material in July 2021 and maintained that she did not “sit on the evidence” for four months before sending the email. She states that she sought professional help from Dr W and Mr V about whether the father may be a paedophile in the adjourning period. Regardless of whether this is true, the Court does not accept that Exhibit A2 was sent out of “pure intent” given she was allowing the children to live with the father for three nights per week and the language used in the email. The Expert also states at paragraph 136 of the Report that the mother sending the material to the father’s family was a deliberate attempt to tarnish the father’s reputation. The mother’s inability to make concessions in relation to this shows a lack of insight into her own behaviour, which was unacceptable.
The mother also gave evidence in relation to social media posts she had made about the father. Exhibit A3 shows various Facebook posts made by the mother. One of them includes the caption, “coercive control kills”. When questioned whether she was seriously suggesting that her life was at risk because of the father, she answered, “absolutely”. Further, when she was asked whether she considers the impact on the children when she publicises the details of the relationship, the mother answered, “I am a truth speaker”. However, she did not provide any evidence as to whether the father is capable of killing someone. The Court finds that there is no evidence in this case to suggest that the father was, or is, capable of killing the mother or someone else. The mother’s failure to acknowledge this reflects both lack of insight into her own behaviour and the mother’s own psychological vulnerabilities.
The mother also states the father’s alleged coercive and controlling conduct is a major cause of her mental health issues. However, counsel for the father pointed out that she told the Expert that her mental health issues began well before she met the father (paragraph 65 of the Report). Another peculiarity was that she solely blamed the father for her new partner being “hospitalised with a life-threatening condition”. In cross-examination, she gave evidence that the stress of the proceedings on her harmed her new partner to the point that it triggered his medical condition but was unwilling to give further details as to how.
The Court accepts these incidents do not reflect well on the mother but, when viewed in the overall context of this case, they are situational examples of the mother’s capacity to emotionally dysregulate, and not actually part of a pattern of conduct. There is little, or virtually no, evidence to suggest that the children have been exposed to this lack of emotional containment, indeed it is quite the opposite. The litigation was clearly a difficult experience for the mother.
Further, when looking at the progression of the father’s parenting orders sought, it is clear that as at 15 November 2021, he believed the mother’s capacity to emotionally regulate was such that the children could live in an equal time arrangement with both parents. However, by 28 November 2022 he believes the mother does not possess the capacity to have primary care of the children but does possess the capacity to have significant and substantial time. Some of the post-separation allegations that the father makes that led to this change have been outlined above. At paragraph 94 of his affidavit, the father states the children reported that the mother has “slapped them”, “likes to hit them”, “hit [X] in the face” and locks the children out of the house. These are serious allegations that are inconsistent with the father’s proposal that the children spend five nights per fortnight with the mother.
As the Court accepts the mother’s evidence that she is engaged with appropriate assistance as regards her mental health, the Court finds that the risk of harm asserted by the father is not established. Even if such risk were established it is not unmanageable in circumstances where the Court can condition parenting orders on the basis that the mother remains engaged with her treating professionals. The Expert concludes at paragraph 137 of the Report that the “priority” needs to be providing the mother with the “appropriate supports and structures to best enhance her mental health”.
An obvious irony needs to be nonetheless acknowledged – the father who asserts risk of harm to the children nonetheless proposes that they spend five nights out of 14 with the mother, with no requirement for her to engage with her treating professionals. His counsel submitted that a reason for not making the parenting arrangement conditional upon treatment is that the father does not want the relationship between the children and the mother to be interrupted if she, for whatever reason, did not attend upon her therapist. Counsel further submitted that the parenting arrangement proposed by the father is not only a reduction of time, but also shorter periods with less time on weekdays (which the Expert described is generally more stressful than weekend time). However, this still does not change the plain fact that the father is proposing significant unsupervised time with no requirement to engage with a treating professional.
Indeed, from the Court’s perspective, the main risk from which the children need to be protected is from the impact of the intense parental conflict that is happening around them. Fortunately, there is very little evidence to suggest that, so far, they are experiencing any adverse impacts because of this conflict. Indeed, despite the conflict between the parents, the strained relationship and often difficult communication, they have both done exceptionally well in shielding their children from it and the Report reflects this. There is a risk to the children if the conflict continues but the Court hopes that the finalisation of these proceedings will mitigate that risk.
There is no risk to the children of harm due to abuse, neglect or family violence. This was both implicit in the proposals of both parents, and explicit in terms of how they ran the case.
The Children’s Views
The children are young and experiencing developmental and neurodiversity issues. Their views still need to be considered. The Court notes that according to the Report, the children appear to be happy, settled, and content with the current arrangement. X thinks the current arrangement is “fine” and does not wish to change it although he would feel “a little happier” if he spent more time with the father (paragraph 79). Y also expressed that she likes the current arrangement and does not wish to change it (paragraph 88). The Court agrees with the Expert that the weight that should be given to the children’s views should be balanced against the important other risk factors in this case.
Nature Of The Relationships Of The Children
The children enjoy a close relationship with each other and with each parent.
Both parents are aware of the closeness of, and some of the issues about, the sibling relationship. The Expert reports that in families where there is a child with special needs, siblings can often be overlooked making them more vulnerable to mental health problems. Further, the Report states there is a risk that Y may develop into a more parentlike role and may experience feelings of jealousy or upset (if her parents devote more time to X or if X does not wish to play with her) whilst also feeling protective of her brother. In cross-examination, the Expert gave evidence that the parents will need to be alert to these issues and intervene if these issues arise. The Court finds that the parents’ awareness of this mitigates the risks identified.
The evidence shows that the children enjoy different, but equally important, relationships with each parent. The Report observes that whilst both children have a loving and affectionate relationship with both parents, the father’s play with the children was more open whereas the mother’s play was more prescriptive and controlled (paragraphs 106–108). This was explored further with the Expert during cross-examination, and she gave evidence that X exhibited signs of anxiety with the mother. Counsel for the mother put to the Expert that it is not a criticism of the mother to be more prescriptive in circumstances where she is using techniques that have been taught to her by X’s health practitioners, particularly what she calls “explicit teaching”. The Expert accepted this although she warned against continuing to use a prescriptive approach with Y as she gets older.
From the Court’s perspective, it is unsurprising that the children’s relationship with the father is comparatively open and free whilst the mother fosters a more structured environment. The children would spend more “fun” time with the father simply by virtue of spending most of his time (three out of five nights) on the weekend less encumbered by things like homework and set extracurricular activities for the children. Counsel for the mother described this as the mother doing the day-to-day drudgery of care compared to the father who has never really done this except for short periods in exceptional circumstances when the mother was working interstate. The Court accepts this characterisation without in any way diminishing the importance of the role played by the father. The “drudgery” referred to by counsel involves time, skill, attunement to safety issues, and enormous commitment on the part of the mother.
The father only has the children during the school week each Wednesday night. The Court observes that, in a qualitative sense, this is neither inferior nor superior to the mother’s time with the children, but it would affect how the children perceive their relationship with the father. In the mother’s home, the children live a regimented life due to their developmental issues and the mother has had to carry the greater burden of this than the father. This reflects the roles that the parents themselves chose in their marriage.
Further, counsel for the mother submitted that the children have a primary attachment to the mother and they are used to the mother providing for them in that capacity. As the mother was primarily responsible for the parenting throughout the relationship, she is also the one the children turn to for their emotional needs. The Court agrees. The Report states at paragraph 80 that X says his favourite thing about the mother is that she gives very good cuddles. Counsel interpreted this as meaning, and the Expert agreed, that the children would turn to the mother if they are hurt or distressed.
The Court accepts that the children’s relationship with the mother is such that she primarily provides for their physical and emotional needs. This is not to diminish the father’s position in the children’s lives but simply reflects the agreed division of roles throughout the relationship.
Opportunity To Participate In Making Decisions
The evidence of the parents seeking to, or having been excluded from, the opportunity to participate in making decisions, or spending time with the children are insignificant when viewed in context. The father makes allegations that he has been excluded from making decisions in relation to enrolment of the children in extracurricular activities and that the mother was making unilateral decisions regarding X’s high school. Parental trust is low, and communication is sometimes strained. Both matters are clearly exacerbated by the litigation and what the Court will find was the mother’s experience of the father as being controlling. The issues on which they disagree primarily relate to education, and to a lesser extent, the health of the children, and they have each acted independently at times (for example in relation to school enquiries and enrolments). Once orders are made, and this litigation finalised, the Court sees little risk of this continuing.
Fulfilling Obligations As A Parent
The father has done everything he can to fulfil his obligations to maintain the children and has, in fact, been exemplary in this regard.
Likely Effect Of Change
The likely effect of change on the children’s needs, of course, is to be viewed from the perspective of the competing proposals. The mother’s proposal indicates a minimal change except that instead of breaking up five nights with the father into two lots of one night and one block of three nights, the mother proposes one lot of one night and one block of four nights. The Court notes this is also in line with the children’s expressed views. Going from a 1+1+3 arrangement to a 1+4 arrangement involves less changeovers for the children which means the children are less likely to be exposed to any parental conflict (paragraph 113 of the Report). The Expert commented that the 1+1+3 arrangement involves too many transitions and is too cumbersome for the children to switch between the homes and settle into the household (paragraph 120 of the Report). The Expert further stated that it would be prudent to avoid too many changes at any one time for X so if any parenting arrangements were to change, it should occur prior to X starting high school (paragraph 120 of the Report). Further, all of the changeovers proposed by the mother will occur via the school during school terms.
The Court has considered a 2+3 arrangement in response to the Expert’s comments in paragraph 120 of the Report referred to in the previous paragraph. However, X is used to spending time with the father in blocks of one night and the Expert advised against too many changes. Therefore, the Court is inclined to agree with the mother’s proposal of 1+4 as changing it to 2+3 will address one issue (switching between homes) but also create more change (two nights instead of one).
The greatest change is reflected in the father’s proposal which sees the children living with him for nine nights per fortnight instead of five, and five nights per fortnight with the mother instead of nine. The first, and possibly most important evidentiary consideration, is that the Expert does not consider the impact of change on the children in the Report, other than acknowledging that this “would signify a significant shift in the dynamics of the family” (paragraph 115). However, the Expert did identify a risk to the mother’s mental health and the effect on her parenting capacity in the short term if primary care is given to the father. The Court accepts this evidence. The Court would be very reluctant to make any drastic change unless absolutely warranted, given the adverse impact on the mother.
During cross-examination, the Expert was somewhat equivocal in both warning about the unknowns and suggesting that there were at least indicators that the children would cope. The Expert stated that she did not specifically identify any risks to the children if they transitioned to primarily living with the father. However, she acknowledged that it represents a huge change to the children and the Expert would have wanted to canvass the issue with the children had it been a proposal at the time in order to properly assess whether the children would cope with the change. Therefore, whilst the Court is wary about placing significant weight on the views of the children, neither the Expert nor the Court knows what the children think about living primarily with the father. This, of course, is relevant to the impact on them of change. In cross‑examination by counsel for the mother, the Expert conceded the father’s proposal not only changes the number of nights but also the nature of the roles involved, and it serves as a risk that the new arrangement may not be suitable for the children, in circumstances where the current arrangement is serving the children quite well.
The second most important issue is the absence of any expert evidence about the effect on the children’s relationship of being separated from the mother who has been the primary carer for all of their lives, notwithstanding the very significant role the father has played. In relation to this, the Expert stated that there was no reason why the children would not adjust given they have a good relationship with the father, although there will initially be sadness as they see the mother as their source of comfort. She stated that they would ultimately adjust to the new arrangement, but it would take time. The Court is cautious about placing undue weight on this evidence. There is an inherent element of speculation within the proposition. The Court is cautious about changing an existing well-established and functional parental arrangement for the children.
The Court recognizes a special feature of this case is that the net pool of assets is relatively small, especially the non-superannuation assets, compared to the father’s yearly income, earning capacity and the financial resources available to him. The Court has found that the parties have a pool of assets including superannuation of $3,205,227, and a pool excluding superannuation of $1,938,586. This includes $2,473,718 in assets, $500,457 in addbacks and $1,035,589 in liabilities. This is in comparison to the father’s yearly income which is over $1 million alone and his significant financial resources of approximately $1 million. Once these proceedings are finalised, and if history is a guide, the father will have abundant opportunities to generate income from which property and financial resources will be acquired given his much greater earning capacity. The Court readily accepts the express or implied contention in the father’s case about the volatility of the industry, but notes that even the ebbs and flows seem to have a pattern.
Further, the Court has determined that the mother will have primary care of the children and made findings that the mother will prioritise caring for the children and their special needs over her career prospects. This is a significant s 75(2) factor even recognizing the child support the father pays.
Section 75(2)(o) allows the Court to consider any facts or circumstances which the justice of the case requires to be taken into account. X has special needs for stability and the Expert states that it is critical there is minimum disruption to his usual routine. The focus must be on his needs rather than the needs of the adults (paragraph 121 of the Report). The Court will thus consider, to some extent, that it will be of significant benefit to X if he is not displaced from the family home.
Based on the findings above and liabilities that have been removed from the balance sheet to be considered pursuant to s 75(2), the Court assesses an adjustment for future needs for the mother to be at 20 per cent. The Court acknowledges that this creates a substantial differential in the respective entitlements of the parties of 40 per cent or $1,282,090.80. The Court also notes that the differential represents approximately only one and a half years of gross income of the father. Even when viewed as a net income of 50 per cent of gross, it is only approximately three years. It is also noted that the Court will not be equalising superannuation, nor was it asked to, as the mother is in need of funds now rather than later.
JUST AND EQUITABLE ORDER
Both parties agree that the mother should be given the opportunity retain the Suburb D property and the mother sought to retain it unencumbered, if possible. Therefore, the Court will explore a scenario where the mother retains the Suburb D property and the father is solely liable for the mortgage. However, the G Investments #...35 Growth & Income Fund currently in joint names will be given to the father to help him pay off the mortgage.
Assets in the father’s name Value G Investments #...35 Growth & Income Fund (Non-Retire) 32,632 CBA #...92 6,447 CBA CDIA #...93 44 CBA Goalsaver #...92 31,112 Funds held in trust account of Lander & Rogers on account for outstanding legal fees and final hearing 174,547 Around 20,000 Vested & Released B Pty Ltd Shares (HH Broker Account #...32) 104,681 Around 15,000 Vested & Released B Pty Ltd Shares from LTIP22 (GG Financial Services) 88,440 Around 80,000 Vested & Released B Pty Ltd Shares from XRRP23 (GG Financial Services) 411,703 DD Bank Online Savings Account #...17 2,047 Sale of US Investment Shares - Mutual Funds - G Investments late 2021 49,098 B Pty Ltd shares sold early 2022 via HH Broker 13,182 Partial Property Settlement – around 15,000 B Pty Ltd shares allocated but not yet sold (Order 2(b) of June 2023 Interim Orders) 73,920 Partial Property Settlement – B Pty Ltd shares sold (March 2022 Interim Orders) 147,000 Total: $1,134,853 Liabilities in the father’s name Value Estimated Australian tax payable for FYE2024 285,887 F Bank Home Loan #...64 519,412 F Bank Home Loan #...65 230,290 Total: $1,035,589 Superannuation in the father’s name Value G Investments #...96 & #...51 RT 625,508 G Investments #...16 RT 158,853 Superannuation Fund 1 225,231 Total: $1,009,592 Net total in the father’s name $1,108,856 Assets in the mother’s name Value Property at C Street, Suburb D 1,600,000 Westpac #...95 121 Motor Vehicle 1 (transferred to Wife post-separation) 21,944 Partial Property Settlement – B Pty Ltd shares sold (March 2022 Interim Orders) 147,000 US Shares - G Investments (USD 50,000) sold late 2021 70,257 Total: $1,839,322 Liabilities in the mother’s name Value Total $0 Superannuation in the mother’s name Value G Investments #...47 LT 76,470 G Investments LT #...53 & #...97 52,375 Superannuation Fund 3 #...46 63,327 Superannuation Fund 2 64,877 Total: $257,049 Net total in the mother’s name: $2,096,371
The Court has determined that the division of assets should be 70:30 in the mother’s favour. This means that the mother should receive $2,243,658.90 of the matrimonial pool and the father should receive $961,568.10. Therefore, even if the mother retains the Suburb D property unencumbered, she needs an additional $147,287.90.
It is not just and equitable to the father for him to immediately liquidate such assets as he has to pay out the mortgages and make the capital payment to the mother, especially as he has his own personal liabilities. The Court believes, however, that the proposed alteration of property interests can be made just and equitable from his perspective firstly by giving him time, and secondly by reference to his financial resources. The Court has found that the total gross financial resources available to the father is $1,036,939, and the present focus is on funds likely to be available by the end of 2024. When the father’s 2024 financial resources crystallise he should, together with existing assets and resources, have enough funds to pay off the mortgages. Exhibit R1 shows that the holding lock will conclude in mid-2024 on approximately $520,800 (around 80,000 shares) as part of his 2021/2023 Long Term Incentive Plan and $45,036 and $75,668 as part of his 2022/2023 Manager Incentive Plan. However, the father states the exact amount he receives in mid-2024 will depend on company performance and certain conditions being met. The Court notes this but is still comfortable the father will have enough funds to pay off the mortgages by the end of 2024. The Court will postpone the date that he needs to pay off the mortgages and make the lump sum payment to the mother, to shortly after his resources crystallise. The father will, of course, continue to earn the high income that he does.
This can only be achieved, however, if the father continues to pay the mortgage payments, indeed as he presently does. As will become apparent from the discussion of maintenance below, he currently does have this capacity, and indeed the Court will assess that he continues to do so until such time as he can discharge the mortgages. The Court will give him until 31 December 2024 to do so. However, he can discharge the mortgages earlier if he so chooses, thus causing a consequential discharge of his obligation to pay the mortgage payments. It is unlikely that a transfer of the father’s interest to the mother can be registered until such time as the mortgages are discharged and thus it will be necessary to restrain the father from further encumbering his interest in the family home and to declare that the mother has a caveatable interest to notify the existence of her entitlements under these orders. The Court acknowledges that this may also fetter the mother’s ability to sell the home.
The Court notes that the father will be left with fewer tangible assets, whilst the mother gets greater tangible assets. However, the father’s income and financial resources is far greater than that of the mother’s. Therefore, the Court is satisfied that the proposed orders are just and equitable to both parties.
In his Case Outline, the father sought an order that the mother be restrained from using funds held on trust for the children other than to meet the account expenses or to release the funds to the children. He also sought orders in relation to household contents of the Suburb D property. The Court declines to make these orders in the absence of specific evidence and submissions about them.
FAMILY DOGS
In relation to the issue of pets, the Full Court stated in Grunseth & Wighton [2022] FedCFamC1A 132 (“Grunseth & Wighton”) at [63]–[65]:
62As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.
63If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal, and that can simply be dealt with in the ordinary course.
64It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.
The parties did not place the family dogs on the balance sheet, presumably because they did not view the dogs as holding any financial value. It is noted for the purposes of these reasons that all the dogs are purebreds.
The father seeks orders that he keep one dog and the mother retain the others, but there be a rotational system throughout the school holidays in line with the scheduled changeovers for the children. The mother seeks orders that she retain all the dogs. Therefore, the parties seem to be in agreement that the mother retain some of the dogs and the dispute is centred around the other dog. That dog is currently unregistered.
In cross-examination, the mother gave evidence that the dogs are “brothers” and that they can’t be separated. The Court cannot take such considerations into account as they are to be treated as property. The Court has considered the suggestion in [64] of Grunseth & Wighton in making orders for each party to make a blind bid for the dog. However, in the circumstances of this case where there is a disproportionate level of financial capacity, this is not appropriate.
The father has the financial means to purchase a new dog. The mother does not. The Court will make orders that all the dogs are to be registered to and solely owned by the mother. Section 79(4)(e) incorporates s 75(2) including (2)(o). The dogs are important to the children. This is another reason why they should stay with the mother.
The Court also declines to make the orders sought by the father in relation to the rotational system of the dogs in the school holidays. This is the very arrangement he complains about at paragraphs 291–296 of his affidavit including that the changeover of the dogs create unnecessary stress for the parties and the children.
SPOUSAL MAINTENANCE
A few preliminary observations are apposite, relating to both spousal maintenance and child support. The maintenance and child support aspects of the case did not receive the detailed attention it really deserved. The onus of proof is on the mother to establish that she needs spousal maintenance, the quantification of that, and her entitlement to the child support sought.
A peculiarity in the mother’s evidence in cross-examination is that she deliberately avoided obtaining an updated NDIS plan for X as she did not want that payment to affect the Court’s decision as to whether she receives spousal maintenance or a child support departure order. The Court accepts counsel for the father’s submission that this is disingenuous. Any expense covered by NDIS is an expense not actually incurred by the mother.
Much of the evidence the mother adduced about the children’s expenses, and thus her own total expenses, was unclear and confusing. At one point, she referred to spreadsheets prepared by the father which she acknowledged she did not understand, and which were, concerningly, what the children’s lifestyle would cost (emphasis added) not what the actual expenses were. She confirmed she was in possession of these spreadsheets spanning over 12 years, but she did not produce them in these proceedings because, she said, they were too elaborate. At another point the mother stated that the children’s expenses were based on her credit card statements. It is likely, the Court finds, that the expenses deposed to in the mother’s Financial Statement filed 5 September 2023 are sourced both from the spreadsheets and credit card statements, though it is not possible to identify which is which.
The absence of specific challenge in cross-examination to the mother’s expenses in her Financial Statement mitigates the potential implications of the above.
At paragraph 287 of the father’s affidavit, he deposes that regardless of where the children live primarily on a final basis, he intends to meet 100 per cent of their private health insurance premiums and out of pocket medical, optical and dental expenses, all school-related expenses and agreed extracurricular activities. The origin of this seems to be interim Orders 1–3 made on 10 March 2022. It is regrettable that the father does not quantify these expenses in his affidavit. An examination of his Financial Statement does not assist the Court to quantify them. The father seeks no order about this. It complicates and renders uncertain the exercise the Court must undertake in relation to spousal maintenance and child support. The best the Court can do is note this and take it into account in its determination about the issues before it as best it can. The only logical way to interpret the father’s evidence is that he will pay these expenses in addition to child support as assessed.
The orders made on 10 March 2022 are expressed to be categorised as interim spousal maintenance under s 74 of the Act and periodic and non-periodic child support for the benefit of the children. No differentiation is made as between spousal maintenance and child support.
Turning to the substantive issues, the mother seeks an order for spousal maintenance in the amount of $3,000 per month for a period of five years from the date of the orders, with such payment to be made on the 17th day of each month. The father seeks that the mother’s application for spousal maintenance be dismissed. In his affidavit he is quite critical of the mother’s claim in this regard. The Court does not accept the father’s submission that the mother is not in need of maintenance as she has, inferentially, an un-realised, or under-realised, capacity to earn income. This submission is not supported by the evidence. Her extensive efforts to obtain the employment that she did strongly refutes the submission.
The father filed a Financial Statement on 4 September 2023. He was not cross-examined about any of the expenses he identified. He lists his total weekly income as $8,329. He has listed his weekly expenses as $8,831 but this includes spousal maintenance provided by interim orders of $1,355 (item 31) and mortgage repayments of $1,166 (item 23). He proposes that both payments be discharged in which case, the Court notes, his ongoing weekly expenses would be $6,310, and he would have a surplus of $2,019 per week.
As the father himself acknowledges in a note to his Financial Statement, his gross income does not include cash bonuses which he himself projected would be $95,475 net, in September 2023, after the date of the Financial Statement, and treated as an asset in the same. This, of course, significantly increases his capacity to pay, whether characterised as an additional net weekly payment of $1,836, or as the lump sum in a bank account. If it is notionally treated as a weekly payment, and assuming that (as he contends) he will no longer be required to pay spousal maintenance and the mortgage then his weekly surplus would be $3,855. Even if he were required to continue these payments, he would still retain a weekly surplus of $1,334. The Court ignores for present purposes whatever intended use the father might have for these funds. The cash bonus is an attribute of his employment package, is ancillary to his employment, and thus can be treated as income for present purposes.
The mother’s Financial Statement deposes to a gross weekly income of $4,404, and total personal expenditure of $4,238, resulting in a current weekly deficit of $166. She deposes that she receives $2,554 weekly from the father as maintenance and child support. The Court notes that the difference between what the father contends he pays ($1,355 and $1,166 weekly) and the amount the mother contends she receives (those amounts plus an estimated $33 weekly) is attributed to school expenses. The sum of $72 per week is her carer allowance (which is disregarded for present purposes), and $1,778 per week as salary. She explains in a note to her Financial Statement that the $2,554 paid by the father weekly is pursuant to interim orders made on 10 March 2022 and consists of $1,355 as spousal maintenance, $1,166 as mortgage payments and then school expenses which she estimates at $33 per week. The mother was not specifically cross-examined about the amounts listed in her Financial Statement.
As discussed above, to implement the proposed order for alteration of property interests discussed above, and to provide the father with an opportunity to equitably structure his financial affairs to reasonably meet his own needs, and those of the mother and the children, the father will be given time to pay off the mortgages on the family home but, until then, he will need to continue to pay the mortgage payments. This would require the father to continue to pay spousal maintenance in the sum of $1,166 per week and, on any scenario, he has the capacity to do so. Likewise, on any scenario the mother needs such maintenance given her unchallenged Financial Statement.
Counsel for the father submitted that although the mother seeks an order for $3,000 per month in spousal maintenance ($692.30 weekly), she adduces no evidence as to how that sum is calculated. Counsel furthered that the mother has not identified a lack of capacity as she has an income-earning capacity. It seems reasonably clear to the Court that the mother seeks $3,000 spousal maintenance monthly to replace the existing spousal maintenance order.
Counsel for the mother submitted that the mother was not challenged on the amounts listed in her Financial Statement filed 5 September 2023 and the amount she seeks on a final basis is considerably less than the expenses she claims. At Part N, the mother has set out her expenses to be $3,379 per week based on previous credit card statements. This amount includes $1,947 per week for the children’s expenses. Her total expenses amount to $4,238 weekly. The Court notes this does not include the mortgage payments, presumably because the father has been meeting this cost.
The Court will discharge the orders made on 10 March 2022 but make a separate order for the father to continue to pay the mortgage payments as discussed above, whilst recognising that this figure could fluctuate having regard to interest rate movements. For the purposes of calculating the mother’s income, the Court will exclude the amount received from the father for the purposes of the mortgage, as that expense has also been excluded from the mother’s Financial Statement. The only other support that the mother would receive from the father is the child support assessed at $2,450 per month (rounded off) or $565.40 per week. This means the total weekly income received by the mother would be $565.40 plus $1,778 (her salary) which equals $2,343.40. The mother’s carer allowance is disregarded as it is a government benefit.
The mother’s expenditure is $4,238 weekly, leaving a net deficit of $1,894.60. Her claim to maintenance is only $3,000 per month or $692.30 per week. The Court is satisfied from the evidence that she needs such amount, and the father has capacity to pay.
The Court believes that it can reasonably expect the father to discharge the mortgage as soon as he is financially able. On the evidence before the Court, that should be sometime in 2024, probably before the end of that year. The Court recognises the possibility that whilst the mortgage payment is currently $1,166 weekly, it could increase before the mortgage is discharged, and hence the order for maintenance should be expressed not as a specific figure but in generic terms.
The Court recognises the likelihood that once the mortgage is discharged the mother may well still need maintenance beyond the difference between the amount ordered, and the mortgage payments. It is impossible for this Court to prognosticate about what the relative financial circumstances of both parents will be at that time. For example, the mother might not be in receipt of income, or her income might be very different to that presently stated. The amount of child support might be different. The father’s financial circumstances might have changed. The Court can only do the best it can on the evidence before it.
The order for maintenance, therefore, will be that the father continues to meet the mortgage payments on the family home until such time as he is able to discharge the same at which point in time his obligation to pay the same terminates. He will pay child support as assessed. He is otherwise obliged to pay spousal maintenance in the sum of $3,000 per month or $692.30 weekly.
The Court believes that this order should be time limited and accordingly finds that the maintenance should be paid for three years from the date of order by which time the children will be older and, hopefully, less dependent on the mother. The mother sought five years but there was no discernible rationale for this.
AN ORDER UNDER SECTIONS 116 AND 117 OF THE CHILD SUPPORT ASSESSMENT ACT?
By way of departure from the administrative assessment of child support for the children, the mother seeks an order that the father pay her child support in the amount of $2,500 per child per month ($5,000 per month in total) with such payment to be made on the 17th day of each month.
Exhibit A1 is an updated child support assessment for the period 1 September 2023 to 30 November 2024 in line with the father’s new taxable income. For this new assessment, the taxable income for the father is recorded as $449,906 and for the mother as $0. The new child support amount has been assessed as $2,449.83 per month. This, of course, is not in addition to what the father currently pays, but is reflective of the same, and is covered by Order 4 made on 10 March 2022. Nonetheless, if the Court were to dismiss the mother’s child support application, the amount of child support the father would be required to pay is $2,449.83 per month.
Counsel for the father submitted that the mother has not successfully convinced the Court that a child support departure order pursuant to s 116 of the Assessment Act is warranted, in circumstances where an assessment had issued so recently. Counsel furthered that it was incumbent upon the mother to establish the grounds of departure under s 117 of the Assessment Act. This was not clarified in the mother’s case outline or affidavit.
Counsel for the father further submitted that the mother has failed to explain how she arrives at a calculation of $5,000 per month for child support. When the mother was asked how she calculated the child support departure order, she responded that it was based on what the father had demonstrated in his calculations over time in the spreadsheets referred to above.
Belatedly, in closing submissions, the mother’s counsel submitted that there are special circumstances of the case that require a departure from the administrative assessment pursuant to s 117(2)(c)(ia) as the result would be unjust and inequitable due to the income, property or financial resources of the father.
Exhibit A1 is the child support administrative assessment. It does not take into account the father’s benefits other than his base salary (for example, his incentives in Exhibit R1) and secondly, the administrative assessment caps at $250,000. Therefore, whether the father earns $250,000 or $500,000, the child support will be the same. Further, as the mother is now employed and may remain employed, the child support that the father is required to pay may reduce, even if it has not done so currently. These are reasons to consider the mother’s child support departure application.
Nonetheless, this Court concludes that there are more compelling reasons to dismiss her application. Potential changes in the mother’s own financial circumstances, namely the uncertainty about her employment prospects after the end of 2023, mitigate against her own application. The existing processes for administrative assessment are, in the opinion of this Court, much better able to accommodate the complexity, and ebb and flow, of the financial circumstances of this family. It is not just and equitable, in the circumstances of this case, to depart from the existing administrative assessment of child support. It follows, therefore, that the mother’s application in this regard is dismissed.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 29 November 2023
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