CELAN & CELAN

[2017] FamCA 803

FAMILY COURT OF AUSTRALIA

CELAN & CELAN [2017] FamCA 803

FAMILY LAW – CHILDREN – Interim proceedings – Application for children to be returned to Sydney – Where the mother had previously relocated with the children –Consideration of s 60CC factors – Where one child has special needs – Where it would not be practicable for the mother to live in Sydney - No order made for the children to return to Sydney.

FAMILY LAW – SPOUSAL MAINTENANCE – Application for interim spousal maintenance -Where one of the most valuable assets of the marriage is the father’s earning capacity – Where the mother has been out of the paid workforce for 15 years – Spousal maintenance ordered in the sum of $1,000 per week.

FAMILY LAW – CHILD SUPPORT – Application for child support departure – Consideration of s 116 of the Child Support (Assessment) Act 1989 (Cth) – Where the Court has to find that there is a ground in the special circumstances of the case for ordering a departure – Where no ground was offered – No order made for child support departure.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117(4), 117(5)
Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA(2)

Goode & Goode(2006) FLC 93-286

APPLICANT: Mr Celan

RESPONDENT: Ms Celan

FILE NUMBER: SYC 3274 of 2017

DATE DELIVERED: 14 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 13 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Steggall

SOLICITOR FOR THE APPLICANT: Balmain Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gillies

SOLICITOR FOR THE RESPONDENT: Sexton Family Law

Orders

1. Until further order, unless the parties otherwise agree in writing, the children are to spend time with the father from after school on Friday or 9.00 am on Saturday at his election until 6.00 pm on Sunday on alternate weekends the first of those weekends is to be the upcoming weekend and each alternate weekend thereafter.

2. The children spend time with each of the parents for one half of the school holidays in block periods.

3. Arrangements are made between the parents so that the special days at Christmas and at Easter are shared between the households.

4. Leave is granted to the parties to bring the matter back in the event that they are unable to reach satisfactory arrangements in relation to further or different living arrangements on some intervening weekends and special days.

5. The children B born … 2006 and C born … 2008 be represented.

6. The Court requests that Legal Aid NSW make arrangements for that representation as soon as practicable.

7. The parties facilitate the attendance on their representative of the children at the direction of their representative at times, dates and places requested by their representative.

8. An appointment be fixed in the Child Responsible Program for the family.  [MIA dates:  Applicant – 9.00 am on 6 December 2017 and Respondent – 11.00 am on 6 December 2017]

9. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. Until further order the husband pay to the wife as she directs $1,000 per week by way of interim spousal maintenance, the first payment is to be made within seven days and payments are to be made every seven days thereafter unless the parties agree to some other arrangement in writing.

11. No order will be made for child support departure.

12. The husband is restrained from selling any further shares in his employer’s company or any other shares without giving the wife at least two months’ notice in writing.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3274 of 2017

Mr Celan

Applicant

And

Ms Celan

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim parenting and interim financial relief.  The matter was listed in the duty list yesterday and consumed all of the available time.  The duty list rules require that matters can be heard and determined within two hours.  This took all day, but there it is.  The hearing concluded at about 5.30 pm last night and I indicated to the parties that I would deliver judgment today.  The parties were excused on delivery of judgment, but the mother appears with her solicitor and the father with solicitor and counsel.

2. The main issues I was asked to determine were whether the children of the parties should return from the Central Coast to live in a defined area of Sydney.  There is an application for interim spousal maintenance and an application for child support departure.  Other matters are listed to commence at 10 o’clock today, and I am going to make inroads into their time.  For that reason I will give judgment as quickly as I can but I can say, in summary, I am not going to require the mother to return the children from the Central Coast.  I am going to make an order for spousal maintenance in the sum of $1,000 a week, and I am not going to make orders in relation to child support departure.

Background

1. The father is 44 years of age.  He is in a relationship and lives with a lady called Ms D.  She is a European national.  She has no paid employment, but she is seeking a long-term visa.  She and the father anticipate that she will have paid employment sometime.  The mother is 47 years of age.  She has a relationship with somebody called Mr E.  They do not live together, and I gather there are no plans for them to live together.

2. The parents were in a relationship from December 1996, they cohabited from December 1999 and married in 2001.  All of that was done as citizens of the United Kingdom.  The parents came to Australia in June of 2003, and that was caused by the father’s work with an international company.  He has remained with that company since, albeit he moved to a more senior role in 2014.  He may have had other moves in the meantime, but all with the same company.  The parents separated on 7 May 2015 and were divorced, with effect, from 7 March 2017.

3. The parties have two daughters:  B who was born in 2006 and is 11 years of age.  She has been diagnosed with a disorder on the autism spectrum, and there is reference to her having Attention Deficit Hyperactivity Disorder.  Her treating psychiatrist is Dr F.  C was born in 2008 and she is eight years of age.  Until May of this year, the girls attended Suburb G Primary School.

4. The former matrimonial home was rented premises at Suburb H.  At separation, the father moved out to a nearby property and soon thereafter to premises at Suburb J.  In January of this year, he moved to other premises at Suburb J, where he lives with Ms D and the children when they are with him.  There are no parenting orders.  The arrangement has been that the children are with the father from Friday afternoon to Sunday afternoon on alternate weekends, and he has been having Monday afternoons associated with an activity with C, and Friday afternoons occasionally for netball with B.

5. A s 60I certificate issued last year, and I think there is reference to the parties engaging with Relationships Australia, which suggests they made an effort last year to try and resolve things. 

6. The mother has a Master of Arts degree.  She worked at a senior level in finance in the United Kingdom, but was last in paid employment in 2002.  Since then, she has been the homemaker and the children’s primary caregiver.  It is an important feature of the case, in my view, that the parents moved here and had their children and they are a long way from family support.  They have made trips back to the United Kingdom to see members of their extended families, but they are without any significant family support in Australia.

7. The money matters and the parenting matters are intertwined in these proceedings.  There has been a fractious relationship between the parents, particularly after separation.  The father has provided very significant financial support to the mother’s household but, increasingly, he has been dissatisfied with the need for that level of support, both in terms of the level of expenditure by the mother and by the fact that she has made no attempt – and I think this is probably agreed – to return to the paid workforce in any way.  The mother has suffered a degree of emotional upset over recent years.

8. The mother complains, in her affidavit, that the father was not available at times, or at all, to provide levels of relief to her when she needed to have a break or had other commitments.  The father was too busy with his work.  There was one incident where the mother said, “Well, I would like to go away for a week or so.  Can you mind the children,” and the father said, “Yes.  That’s fine, and I will arrange a nanny”.  The mother was upset by that and did not take that opportunity.  That was an example of the sort of problems the parties have had.  The mother has been upset with, at least, the manner of introduction of Ms D into the family arrangements.

9. There was an angry interaction between the parents during joint and several family travel to the United Kingdom in August last year and the police were called.  There have been angry scenes at the households of both parents.  I think in late 2016, and in April 2017, police have been called.  The children have been involved.  In the end of last year and early this year, the father indicated to the mother his desire to introduce a plan, whereby the parents equally share the children’s expenses.  He warned the mother about his concern about her not having paid employment.  On 28 February of this year, the father caused his solicitors to write to the mother, to the effect that he intended to reduce his payments to the mother’s household.  He intended to meet what he estimated would be the child support assessment at $2,180 a month, together with one half of any reasonable costs of the children.

10. The letter noted that the mother had done nothing to curb her expenditure and that it would be reasonable for her to return to the paid workforce.  The letter indicated that the father would make one more payment of $8,704, which had been the monthly payment made to the mother, and that that would be the last payment.  He indicated that he would have his name removed from the lease of the K Street, Suburb H property (the former matrimonial home) and from the utilities at that property and that the mother should move to more appropriate accommodation.

11. By that time, the father’s subsidy of the mother’s household was $8,704 a month, plus various direct expenses which are set out at paragraphs 29 and 30 of his May affidavit, expressed unhelpfully in a combination of monthly, term and annual expenses.  I calculate them at $1,455 a month.  That would put the father’s monthly subsidy of the mother’s household at $10,159 a month.  In March, I think, a child support assessment issued at $2,180 a month.  I think somebody told me that that was the result of the cap rate under the child support formula.  I will come back to that later.

12. Then there was a course of correspondence over the next two months.  I will not go into all of the detail of it, but the substance of it was that the mother asked the father to restore the previous level of funding.  The father started to refuse to pay certain bills that he had previously been paying, and he started sending some invoices to the mother.  Finally, the mother foreshadowed that she was contemplating a relocation out of Sydney, then a relocation to the Central Coast and, finally, that she would relocate.  Unfortunately, the last stages of those communications occurred when the father was in the United Kingdom for his father’s funeral.  It is not that he was out of contact, but one can understand that he was focused on other things.  There were communications between him and the children, between lawyers and, to some extent, between him and the mother, over that time.

13. The mother terminated her lease at the Suburb H property, with effect, from the middle of this month – June.  The father returned from the United Kingdom in late May.  On 27 May, the mother signed a 12 month lease for premises at Suburb L, with the landlord being a friend of a friend of the mother, who lives on the Central Coast.  The mother, in explaining why she chose the Central Coast, mentions that friend, who has children of her own, who are of an age with the parties’ children.  That friend knew someone who had premises and the mother would say that she thereby gained some flexibility in terms of the rental.  The lease mentions, for example, that a bond was to be paid in advance.  That bond was not required by the owner.  It is the mother’s case that this was a way of her getting into premises, out of the hurly-burly of the Sydney rental market.  The mother gave some evidence about the Sydney rental market being frenzied and with people with the price of a bond in their pockets struggling over scarce properties.

14. The children had their last day and farewells at Suburb G Primary School on 31 May and about the next day, the mother moved with the children.  The father wants the children returned to Sydney and to their schools and, presumably, to those of their activities where there could be an agreement about the parties each paying one half of the cost.

15. The formal application he filed sought orders on an interim and final basis that the children mainly live with him.  It is not clear why that document was filed.  At all times yesterday, through his counsel, it was clear that his final application would be for equal time and that, in the interim, he wanted the children to return to live in Sydney with their mother.  However, he did seek a bit more time with the children and he would only seek that the children would live with him for the time necessary for the mother to make arrangements for her to return to the Sydney area.  After lunch yesterday, a minute of orders was submitted from the father that reflected that later position, and proposed for the first time that, if the mother returned, the father would pay her $750 per week towards rent, and would assist her with the arrangements to secure a lease. 

16. The mother opposed the father’s orders.  She proposes that the living arrangements between the households remain as they were, save for any necessary changes to the Monday evening and Friday evening arrangements, which she seems to concede are likely to be largely impracticable.  It seems to be agreed that the travel between Suburb J and Suburb L is of the order of 90 minutes.  I suspect it is longer than that at times, and can be quite difficult.

17. Orders about children are to be made on the basis of their best interests.  Unless consistent with their best interests, orders should not be made to restore a status quo or to punish a parent for acting unilaterally or badly.  The law used to be that there was priority given to a status quo, unless there was evidence of danger to a child or someone else in restoring the status quo.  That approach was rejected in a decision of Goode & Goode (2006) FLC 93-286.  It is the case, and acknowledged by the Full Court, that will often be appropriate to maintain the status quo, and that is partly because of the deficiencies of the process that the parties are engaged in at the moment.  On an interim basis, there is often no independent evidence and the parties’ own evidence cannot be tested.  The Court is not permitted to make a finding of fact on a disputed issue of fact without independent evidence.  The Court is left with the agreed facts, and none of the mechanisms that protect Family Law decisions, and the frailty and limits of the interim parenting proceeding process are such that often it is safest to leave in place what was in place or to restore an arrangement that was in place.

18. Section 60CC of the Family Law Act1975 (Cth) (“the Act”) sets out what the considerations are, in determining what is in the best interests of a child. There are primary and additional considerations. The primary considerations are: the benefit to a child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In my view, those considerations are not relevant to the decision today. There is no doubt that there is meaning in the relationship between each of the children and each of the parents. Each of the parents wants the children to spend significant, unsupervised, overnight time with the other parent. It is not going to derogate from the meaning of those relationships, or the promotion or maintenance of the meaning of those relationships, whether the children live on the Central Coast or in Sydney. The second primary consideration is to have priority over the first, and that is to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The parents have exposed the children to family violence. There have been a number of scenes during which there were angry words between the parents and the children have been caught up in it – no doubt about it – but I cannot see anything about the move that makes that better or worse, sadly.

19. The additional considerations start with any views expressed by a child and any factors, such as the child’s maturity or level of understanding, the Court thinks are relevant to the weight it should give to the child’s views.  I am not in a position to assess the wishes of the children.  The evidence of the parties is replete with instances where the children have been expected by one parent or the other to express an opinion about various matters.  The plight of the children in trying to please each of the parents is displayed in the affidavits of the parents and the affidavit of Ms D.  Because of the way this matter has come to Court, the normal arrangements for providing a safe and independent environment for the expression of the children’s views, the appointment of an Independent Children’s Lawyer or an assessment in the child responsive program have been frustrated.  That assumes that it would be appropriate to discover and give weight to the children’s views in this instance.  It might not be.

20. In my view it would be difficult for the children to assist with the issues about relocation.  We do not give much responsibility to 11 and eight year olds, even 11 year olds that are up with their normal cohort in terms of development, and B is not and this is a complicated decision.  Although it pleased the parties to put the children on the spot about this issue, I do not think it is a matter for them.

21. As far as I can tell, the relationships of the children with the parents are established, and are generally loving and appropriate save, as I say, the parents have failed to insulate the children from their conflict.  The children have been put in a very difficult position and that is revealed in the parties’ affidavits.  The children are reported to have said words to the effect:  “I don’t want to hurt mum,” or “I don’t want to hurt dad”.  With the greatest respect, the parents need to take up their responsibilities and leave the children to get on with being children.  They should not have to decide any of these matters.  Their biggest problem should be what they watch on TV or what they eat. 

1. There is a fledgling relationship with Ms D.  It is hard to know where that is going to go.  It seems to have started quite well, but she has been caught up in the parents’ conflict as well.

2. As to the extent to which each of the parents has taken or failed to take an opportunity to participate in decision making, spend time with or communicate with the children, the background facts suggest that there are no problems.  The parties divided the tasks of the marriage, with one of them as the wage earner – that involved overseas travel and long hours and so on – and the other one as the primary caregiver.  That was a sensible arrangement but they are not obliged to continue to divide the tasks in those ways.  It is one thing for a loving father as part of a contract in an intact marriage to say, “Well, I will put my energy into my work and won’t have as much time with the children”.  Similarly, it is his right to change his pattern of work in order that he can have more time and more involvement with the children after separation.  That is perfectly sensible.

3. As to the extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the children, in a financial sense, that worked really well until late last year or early this year.  At that point the father, rather pre-emptively, pulled the rug out from under the mother’s household.  That has had a terrible result.  He had been wonderfully supportive and generous and appropriate up until then.  As to the likely effect of any change in a child’s circumstances, including the likely effect of a change in separation from either parent or others, the evidence is not available on those matters.  I do not know that the Suburb G Public School holds a place for the children or will take them back.  The father had a conversation with the school on the last day they were there and he was told that the children were still enrolled.  That is all we know.  There is no evidence as to whether the places are available and so on.

4. We do not have any direct evidence from B’s treating practitioner.  We do have a letter and, in summary – this is a letter to the father – and in very brief summary – and this coincides with what the father says Dr F told him.  The mother was unwise to have relocated the children, unilaterally, from Sydney to the Central Coast.  There is no doubt about that but as the letter makes clear, the most important thing was for the father to support the children with regard to the changes that have happened, to positively engage with them and so on.  Notoriously, children on the autism spectrum do not cope well with change.  The mother is said to have complained about the father introducing a change to the girls’ lives when he moved his home 950 metres to other premises at Suburb J.  Now the mother has uprooted these children and moved them to the Central Coast, away from treating practitioners, the school, the school community, friends, all their extracurricular activities and so on.  The concern about the impact of change referred to in the legislation is heightened here for a child on the autism spectrum.  However, Dr F’s letter of 12 June can be read to say that the move should not have happened, but now it has happened, it should not be undone.  As Ms Gillies said, there is a risk that if the move is now reversed, it may have to happen again at some time in the future.  Leading to two more moves.  I repeat, I do not know how much of the earlier arrangements can be put back in place.  The new standard set by the father of, “I will only pay for one half of the expenses that I consider to be reasonable” and the fact that the parties do not enjoy a good relationship, do not auger well. 

5. The mother does not have significant funds and therefore many of those activities may not be practicable in any event.  I am very concerned - and this is a matter under the catchall provision - that it might not be practicable for the mother to live in Sydney.  The parties, presumably because of the commitments they have made to the children and to their upbringing, do not have significant accessible assets.  There is over $1 million in superannuation/a pension fund in the United Kingdom, but the parties do not own any real estate. 

6. I think there is about $300,000 available but, the way the parties are conducting themselves, they will expend that in no time in legal fees.  How will the mother house herself adequately in the future?  I was counselled against it, but it seems to me that I can say it is cheaper to live on the Central Coast than it is in Sydney.  Coming back to the specific provisions, the likely effect of changes in child circumstances including separation - I have dealt with that.  As to practical difficulties and expense, the problem is that Courts cannot enter into rental bonds or leases or make arrangements to move. 

7. There is now a lease for 12 months.  With the best will in the world a breach of the lease may result in a financial penalty.  The father says there are many properties available for the mother in Sydney.  The mother says that she could not find any.  The Court is not in a position to bridge that gap. 

8. The move is going to interfere with the flexibility of the father’s relationship with the children.  There is no doubt about it.  He will not be able to just leave his office and drop into the children’s school and take part in functions.

9. As to the capacity of each of the parents and others to provide for the needs of the children - including emotional and intellectual needs - in my view they are likely to have ample capacity.  As to the maturity, sex, lifestyle and background of the children and either of the parents, B is not with her cohort.  There is an issue about her repeating year 6.  Dr F has discussed that with the parties and canvassed whether that would be sensibly done in a way that would reduce the risk of embarrassment to B. 

10. The parties have put a lot of energy into B.  She has a psychologist, a Ms M and she has tutors.  There have been many physical activities and the parents have really tried to help her.  Unfortunately they are now in the position where one of them says that her problems have been exaggerated and the other one says that the problems are more severe.  The parents should sit down with Dr F and just deal with the facts as they are without seeking to minimise or maximise the problems.  There is no Aboriginal connection. 

11. As to the attitude to the child and responsibilities of parenthood demonstrated by each of the parents.  Well, I have said what I have said about that.  These seem to be basically happy and healthy children.  That is a credit to the parents, but they have displayed, in the documents they have given me, the problems that I have identified. 

12. It seems to be an agreed fact that there has been family violence. I think the mother says she slapped the father on one occasion. There are numerous examples of angry words. The definition of family violence is set out in the Act and it goes to things that are likely to cause fear or concern to a child and there has been family violence.

13. I do not think there is a relevant family violence order.  As to an order least likely to cause the institution of further proceedings, these are interlocutory proceedings and the proceedings are likely to continue for a period, whatever is ordered.  As I say, in terms of other facts and circumstances, I am worried about the practicability of the future arrangements.  The father has had a wonderful income, but the parties’ assets are virtually all in the form of pension entitlements.  At 44 and 47 years of age I assume that the parties will not be able to access them.  Their pension entitlements are in the United Kingdom and I do not know what rights they have.  I think they are mostly in the father’s name.  There is $250,000 to $270,000 in the mother’s name, but they are no use to anybody at this stage.  The pressing problem going forward will be that of the mother.  The parties’ arrangement had her out of the paid workforce for 15 years.  We do not have jobs for everybody.  There will be level of reskilling if she needs to get back to anything like her former career.  She will not have available to her a job of anything like the level of the father’s employment.  This is one of those cases where one of the most valuable assets of the marriage is the father’s earning capacity. 

14. The parties have spent their money.  They have not built up capital.  So really they are looking, I would think - I do not want to provocative about it, but what happens when there are no assets is that there is more focus on the potential for spousal maintenance. 

15. There are good arguments for bringing the children back but, on balance, for those reasons, I am not going to order it.  As to the detail of the orders, I think - well, what I might do is just make a bare order and leave it to the parties to flesh out something else. 

16. I would envisage that something is being lost to the children by their father not being able to have time with them on a flexible basis.  The way that would be remedied would be that, on relatively short notice, the father be able to take up additional time.  He says he is going to make arrangements with his employer to be available.  His relationship with his children is more important than most things.  It is more important than whether they spend all of every day at school.  It is more important than their extracurricular activities. 

17. The mother’s not caught up in paid employment during the week, so there is not a problem about her time with the children and some time on the intervening weekends might be sensible.  The mother should have some time with the children on an uninterrupted weekend, but something has to give in this.  The parties set a standard for the children whereby they had time with both parents and something has got to give. 

18. We do not want the children on that dreadful road on Monday morning, coming back up to school.  That is likely to be unpleasant.  It is going to be hard for the father to have time with the children commencing on Friday night for the same reason.  Every trip on the road is dangerous, but you cannot fix everything.  Subject to that I will try to make orders that restore something of the current arrangements. 

19. Spousal maintenance is a right that accrues, in this instance, because the parties are married.  If one party cannot adequately support themselves from their own resources for any adequate reason, the other party can be called upon to do that to a reasonable extent.  In this instance, I have calculated that the father was paying $10,159 a month towards the mother’s household until about March.  That is over a quarter of the amount he received gross each month.  In his latest financial statement the father says he was receiving over $10,000 a week.  Some of that was by way of the sale of shares in his employer.  The evidence does not permit me to say whether the share scheme is part of income or capital.

20. The critical aspect of that, coming back to the problem for the future, is that to the extent that the father has applied capital to support the mother, that is likely to be her own money.  The father will be fine.  If he goes forward with his pension entitlements and $10,000 a week in income, he will be fine.  But the mother is not going to be fine.  The father’s current proposal is to reduce his subsidy to the mother’s household (child support aside) that to nothing.  He now says that if mother returns to Sydney, he would pay her $750 a week.  That sounds a concession that he can afford to pay $750 a week.  The mother wants $1,000 a week.  Her reasonable needs exceed that sum by a margin.  Her rental is $740 a week.  She needs to justify $260 a week.  She does that with food and the first few items on the front page of her financial statement.  Through his counsel the father is very critical of the mother’s anticipated expenditure on holidays, on clothes and on various other things.  None of that matters.  The $1,000 a week that she is asking for will give her nothing for holidays, nothing for clothes etc.

21. I should have said, although counsel mentioned it yesterday, I am obliged for this purpose to ignore any income-tested benefit received by the mother.  Of course, I will ignore the $501 a week paid in child support because it is committed to the children’s expenses.  So the father has room to move in terms of his obligations.  He is supporting his partner.  That obligation would give way, in my view, to his obligation to the mother and to the children.  That is $250 a week.  There are a number of other expenses in his outgoings that would give way to necessity.  He has made a massive reduction in level of subsidy he was providing.  In my view it is reasonable in the circumstances that he pay the $750 a week he proposes plus an additional $250 a week, making a total of $1,000 per week.

22. That brings me to child support. This Court has no direct jurisdiction in relation to child support departure. There is power, if there is no child support assessment, to make an urgent order to tide a payee over until an assessment issues. Thereafter, the Court’s power is to review decisions made at the end of a long chain of administrative decisions by the Administrative Appeals Tribunal (“AAT”) and there are limits to that power. Section 116 of the Child Support (Assessment) Act 1989 (Cth) provides that if the Court finds that there are proceedings between the payer and the payee and that it will be in the interests of both of them to make a departure decision, then notwithstanding that the parties have not undergone the processes of the administrative scheme – which involves seeking an internal review of an assessment, I think there is one more internal review, and then to the AAT – then the Court can entertain an application.

23. There is also a catch-all provision of the Child Support (Assessment) Act 1989 (Cth) that suggests that interim orders can be made. From all of that interim orders have been made over the years where that was necessary. However, I cannot be satisfied that it is in the best interests of the parents to do that today. The problem is that the Court has to find that there is a ground in the special circumstances of the case for ordering a departure. I could attempt that myself but I was not offered such a ground. Then findings are required under s 117(4) and s 117(5) on a range of issues that would go to whether it is just and equitable (dealing with the problem between mother and father as to how they should share the responsibilities of the costs of the children), and then as between the parent and the taxpayer – and that is relevant here – whether it would be otherwise proper to make an order. I do not have the wherewithal to make many of those findings. The parents could have been engaged in the administrative scheme and, for all I know, they may well have had a satisfactory outcome under that scheme if that had been done a bit earlier. I know they have had other things on their plate, but there it is.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 14 June 2017.

Associate: 

Date: