Chambers and Dubois

FAMILY COURT OF AUSTRALIA

CHAMBERS & DUBOIS

[2010] FamCA 1178

FAMILY LAW - CHILD SUPPORT – Application for departure from administrative assessment
FAMILY LAW – CHILDREN – With whom a child lives - With whom a child spends time – With whom a child communicates - High conflict between the parents

APPLICANT:

Ms Chambers

RESPONDENT:

Mr Dubois

FILE NUMBER:

SYC

2131

2007

DATE DELIVERED:

23 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

17-19, 22 February 2010

REPRESENTATION

FOR THE APPLICANT:

Wife in person

FOR THE RESPONDENT:

Husband in person

Orders

That the mother’s applications for departure from administrative assessments of child support for E Chambers-Dubois born in July 1996, G Chambers-Dubois born in October 1998 and W Chambers-Dubois born in November 2001 made for the periods from 16 December 1005 to 31 December 2010 are hereby dismissed.
That the orders made herein by the Honourable Justice Moore on 30 June 2005 are hereby confirmed and continued except to the extent that they are inconsistent with the orders which follow.
That unless the other parent agrees in writing for them to do so, each parent is hereby restrained from enrolling the children or any of them in activities which are to take place while the children are to spend time with the other parent.
Each parent shall have the sole parental responsibility for arranging and implementing the children’s extracurricular activities while they are spending time with that parent.
That each parent is to notify the other parent by email of each educational, sporting, recreational, religious or musical special event for the children whether arranged by their schools or otherwise within 12 hours of receiving notice of it notwithstanding the form that their notice takes.
That both parents are hereby entitled to attend each educational, sporting, recreational, religious or musical special event for the children which parents are entitled to attend whether arranged by their schools or otherwise.
That the parent who does not spend time with the children in the last week of a school vacation shall pursuant to Order 1(a) made on 30 June 2005 by the Honourable Justice Moore spend his or her first period of time with the children thereafter from the earliest day in the first 14 days of the immediately following school term on which such time could commence in accordance with that order.
That each parent shall send or deliver the children to school in clean and otherwise appropriate clothing and shoes and with school bags, school books and equipment which meet their school needs.
That if the clothes or shoes any of the children were wearing when sent or delivered to school or the other parent on a changeover day were purchased or originally obtained by the parent who sends or delivers them on that day these clothes and/or shoes are to be caused to be returned cleaned and otherwise in the same condition they were in at the time of changeover to the parent who purchased or originally obtained them when the child is next returned to that parent.
That the mother is hereby restrained from causing or permitting any of the children to use or be known or identified by any surname other than Chambers-Dubois.
That the parents are hereby unrestricted in their entitlement to contact each child by email or telephone text, but each parent is hereby entitled to make not more than one telephone call to each child each day while that child is spending time with the other parent.
That the applications of the mother filed on 23 March 2007 and 29 May 2007 and 25 June 2008 and the response of the father filed on 4 April 2008 except to the extent they reflect the orders herein are refused and dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Chambers & Dubois is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 2131 of 2007

Ms Chambers

Applicant

And

Mr Dubois

Respondent

REASONS FOR JUDGMENT

In these proceedings the mother claims child support pursuant to the Child Support (Assessment) Act which I shall refer to as the Assessment Act, from January 2005 until each child turns 18 years, together with a multitude of children’s orders under Part VII of the Family Law ACT. There is a contempt application she has brought against the husband and also a claim pursuant to s117AB of the Family Law Act as well as another under the Family Law Act, s118, to dismiss a contravention claim by the father against her which is not before me.
The mother’s original application for administrative assessment of child support was made on 27 July 2005. It was allocated Case No xxxx11. The father then claimed child support from the mother on 19 October 2005. This claim was given a different case number. Since then, the parties’ child support claims have sometimes been dealt with separately. More recently, their obligations have been dealt with together. The case number for the mother’s obligation to the father is xxxx13.
The mother’s relevant formal applications for departure are contained in her Amended Application for Final Orders which was filed on 29 May 2007. There was an earlier such application filed on 23 March 2007. The wife relied on the amended application.
In her summary of argument lodged with the Court and signed on 17 February 2010 and served on the father, the mother seeks variation of the “CSA decision that the mother pay child support to the father in 2005 to 2007 and all other CSA decisions since” as well as a “refund” of the child support she has already paid; not to the father but as specific expenses she has incurred totalling $30,711.63, as well as what she calls “late penalty fees” and certain specified future expenses which I shall not detail unless it becomes necessary to do so.
The Part VII claims are contained in two applications. The one I have already referred to of 29 May 2007 seeks two relevant orders in paragraphs 10 and 18. Another Application for Final Orders, filed 25 June 2008, originally sought a further 22 orders, but the mother is not proceeding with paragraphs numbered 1, 4, 5, 6, 7, 12, 13, 18, 19, 20 and 22.
In the earlier application, the mother has decided not to proceed with paragraph 4 which would have come under the child support legislation and paragraphs 15, 16 and 17 which would have been subject to the Family Law Act, Part VII. From this application, she seeks no other Part VII orders. The balance of orders she seeks, namely paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13 and 14, are by way of departure from administrative assessments of child support. In the later application, the mother continues to seek paragraphs numbered 9, 10, 11, 14, 15, 17 and 21 which must be decided in accordance with Part VII of the Act and paragraphs numbered 2 and 3 pursuant to ss 117AB and 118 of the Act. I refused to deal with the mother’s claim in paragraph 8 in this application because it is a contempt claim which, because of the differing standard of proof and the requirement to apply stricter procedures, could not be properly heard concurrently with the other applications.
The father is concerned to have all the mother’s claims dealt with whether or not they are contained in any formal application. He himself seeks 15 Orders in his response filed 4 April 2008. These are both child support and children’s orders. Some of these orders are an amalgam of both. The child support orders are both of a general nature and of a more specific nature. Separately, he states which of the orders sought by the mother he disputes or accepts.
The Court has an initial obligation in considering applications for departure from administratively determined child support orders. S. 111 of the Assessment Act, when read with ss 112 and 118(2B), provides that such applications which are for any days occurring more than 18 months and less than 7 years prior to the date the application has been made can only be made with the leave of the Court. The Court cannot make orders in relation to periods which are 7 years or more prior to the date the application was made. No leave is needed to obtain orders affecting periods of 18 months or less prior to the application.
Here, the relevant application was made on 23 March 2007 and amended on 29 May 2007. The earlier application challenges the disallowance by an objection officer of the mother’s objection to a decision of an officer of the Child Support Agency (CSA) made on 16 December 2005 refusing to alter child support assessments in both case numbers xxxx11 and xxxx13 on the ground that the matter was too complex by the application of s. 98E of the Assessment Act. On 16 December 2005, there had been assessments for the 1 December 2005 to 31 December 2007 periods in both cases.
On 24 October 2006 the mother appealed to the CSA for an increase in the child support payable from the father to her. On 4 January 2007, it was determined that the challenge would be disallowed and the assessments would be affirmed because the matter was too complex to be dealt with otherwise. The mother then objected to the 4 January decision. This objection was received on 12 January 2007. An objection officer, on 13 March 2007, refused to change the decision of 4 January. The Application for Final Orders made to the Family Court of Australia on 23 March 2007 appears to apply to case xxxx13 in which the mother was assessed to pay child support to the father. The father was assessed on 16 December 2005 as having a nil obligation to pay the mother in case No. xxxx11. Pursuant to the orders which exist there was nothing owing to the father by the mother as at 19 February 2010 (see Exhibit “P”). A reading of the decisions both of the original CSA officer and that on appeal make it clear that both cases were being considered despite the allocation of the application of the mother to only one of the cases. I regard the mother’s application to the Court for departure to properly be one in respect of decisions in both cases resulting from her application for an increase in her entitlement to child support either by reduction of her obligation to the father or an increase in the father’s obligation to her or both.
As an application to increase an administerial assessment can ordinarily be made in respect of periods up to 18 months before the application, I shall regard the mother’s application which resulted in her resort to s. 98E as able to apply to the 18 months before the application dated 23 March 2007 was made because the child support departure claims which are made in the amended application were originally made in the earlier application. There was no grant of leave by the Court pursuant to S112 to make it for any earlier period.
Although the mother was entitled to have claimed child support for a period before December 2005, the assessment which she challenged administratively started on 1 December 2005 and ended on 31 December 2007. The past period which the Family Court could deal with if the application to it had been made in time is 1 December 2005 to 31 December 2007. As the application to the Court can involve no more than 18 months before 23 March 2007 (see ss 116 and 118(2B)), the earliest day which might be the subject of a departure order is 23 September 2005.
There have also been administrative assessments for each parent for periods after 31 December 2007 up to 31 December 2010. However, there have been no administrative objections which have been persisted with in appeals to the Court for departure. I find that the Court has no jurisdiction to deal with an assessment other than for the periods 1 December 2005 to 31 December 2007 and that leave is not required for the mother to be able to press her application for departing from the administrative assessments made for that period. I am bound to consider orders which cover the whole of the period from 1 December 2005 to 31 December 2007. The Court has power to make different provisions for different periods within this period (see s. 118(2)). Furthermore, in departing from assessment made during that period, the Court is able to make orders which extend beyond it (In the Marriage of Best (1993) 16 FamLR 93 at 967).
Of critical relevance to my considerations is Exhibit “A”. It is a copy of terms of settlement filed and signed by the parties in mid-2007 in the Supreme Court of New South Wales in its Equity Division. These proceedings were between the parties. In them, the father, as plaintiff, sought a settlement of property from the mother based on the parties’ de facto marriage. Orders were made in accordance with Exhibit “A” by consent by a registrar of the Supreme Court. The orders require the mother pay the father $17,000.00 within 7 days of being made. There is also a specific order which is quite germane to the proceedings I am to decide. It is:
“6. The Plaintiff is to take all necessary action with the Child Support Agency to discharge the Child Support arrears debt currently owed by the Defendant in the respect of the children of their relationship”
The clear inference from the specific orders for payment of the $17,000 by the mother to the father and for the father to procure the discharge of the mother’s arrears of child support is that, as between the parties, the financial obligations each had to the other up to the date the consent orders were agreed upon were discharged by the payment of $17,000 including all liability for child support of the mother to that date.
It is not a coincidence that the Assessment Act, by s. 117(2)(c)(iii) with s. 117(1), specifically provides for such a situation. The specific provisions which apply create two categories which allow recognition by the Court of financial settlements and permit such settlements to play a part, to the extent that the Court regards as appropriate, in deciding the outcome of applications for departure pursuant to Division A of the Assessment Act. S. 117(1) provides that if the Court, where there has been a departure application, is satisfied that a ground for departure specified in s. 117(2) has been established and it would be just and equitable as between the parents and to the child and otherwise proper, it can make a departure order. S. 117(2)(c)(ii) is quite relevant to properly settlements between people who have been in a de facto relationship. It creates a specific ground for departure which is:
(c)that, in the special circumstances the case, application in relation to the child of the provisions of the Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent of the child:
…
(ii)because of any payments, and any transfer or settlement of property (my emphasis), made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child;
The word “otherwise” must include transfers or property settlements made between the parents pursuant to their rights resulting from their de facto relationship.
The mother paid the father the $17,000 required under the consent orders. The mother owed $5124.06 in child support to the father on 22 June 2007 so would have owed much the same amount about 2 weeks earlier (see Exhibit “P”). According to the Exhibit, the father “elected to collect” that amount “privately” and thereby effected what the CSA regarded as a “discharge” of the arrears. It is perfectly clear from this that the $17,000 payment part of the terms of settlement was calculated after accounting for the debt which the mother owed the father for child support with the intention of discharging it. The mother thereby was left owing nothing to the father for child support. There is no suggestion he did not comply with his obligation pursuant to the consent orders.
As it is more than highly likely that the respective child support debts at the time the consent orders were made were taken into account in determining the terms of the consent orders, it would be quite unjust and inequitable, as between the parties, and improper to subsequently alter the basis upon which the terms were agreed. The mother’s child support rights and obligations; and partially the rights which she is now seeking to change to her advantage, must have been factored into the settlement and discharged by it and it’s performance. The mother’s amended application filed 29 May 2007, only a few days before the terms were executed, should have been in mind at the time they were executed. By that time, the original application of March 2007 had been served on the father and would have been contemplated by him if he did not know of the May application.
I have searched the file. There is no affidavit of service, so the application of 29 May 2007 may not have been served before the terms of settlement were filed in the Supreme Court on 8 June 2007. If this is the case, the settlement should have been undertaken only if the father had knowledge of the amended application. If he did and assumed the settlement discharged all outstanding child support issues between the parties, neither of whom was represented by a lawyer, it would be unconscionable to permit the mother to proceed on it for child support for any period before 9 June 2007. If he did not know of it, it would be more unconscionable to allow the mother to succeed on it for that part of her child support departure application which is for the time before 9 June 2007. Whichever is the case, it is much more likely than not that on 8 June when the father for his part executed the Supreme Court consent orders, he believed they extinguished any debt each could have for child support to that date.
The history of the matter when it came before registrars in the Family Court on 2 occasions indicates that the father had no knowledge of the 29 May 2007 application.
The first occasion was on 3 May 2007 before the matter in the Supreme Court was settled. Both parties were present and unrepresented. The Registrar noted that the issues were child support and parenting and an order was made that the mother file an amended application for final orders by 31 May 2007. No doubt the amended application which was filed on 29 May 2007 was the mother’s compliance with this order. The registrar required the father to file his Response by 29 June. The matter was stood over to 24 July 2007; that is, after the Supreme Court terms were filed. On 24 July the father again appeared unrepresented. The Registrar, on that occasion made no mention of the application which was filed on 29 May but clearly noted that the mother had filed an amended application on 20 July 2007.
There is an amended application in the file for 20 July 2007. It seeks orders for departure as well as pursuant to Part VII of the Family Law Act. The father is highly likely to have learnt of the 20 July amendment at the mention on 24 July 2007 and to have received a copy because he was ordered to file and serve his response by 21 August. He responded to it but not to the application of 29 May. The mother was not ordered to serve the application she filed on 20 July. The inference is that it had already been served, either on 24 July or earlier.
I have not been asked to proceed on the application of 20 July 2007. It is that of 29 May 2007 which the mother relies on before me. I am not satisfied that the amended application of 29 May 2007 was served on the father before he obtained the consent orders in the Supreme Court. I am satisfied that, in the father’s mind, the application of 23 March had already become redundant when he signed the Supreme Court consent orders.
In these circumstances, his failure to ensure all the claims by the mother for child support contained in the 29 May application were specifically dealt with in the consent orders does not infer he did not intend by the consent orders to finally determine all claims by the mother against him, including those for increases in his child support obligations up to 9 June 2007.

I find that the settlement in the Supreme Court was intended by the father to determine all child support obligations between the parents up to and including 8 June 2007. The circumstances are such that any adjustment of child support by way of departure order I might make in favour of the wife for the period 1 December 2005 to 8 June 2007 inclusive would result in an unjust and inequitable determination of the level of financial support provided to the mother by the father for the support of the parties’ children E Chambers-Dubois born in July 1996, G Chambers-Dubois born in October 1998 and W Chambers-Dubois born in November 2001 because of the de facto property settlement made in Case No …. of 2006 in the Supreme Court of New South Wales, Equity Division on … June 2007.
Thus I should refuse the wife’s application for departure for the period from 1 December 2005 to 9 June 2007. This leaves the period of 9 June 2007 to 31 December 2007 still in issue, as well as the possibility of extending orders from 1 January 2011 until each child turns 18.
Paragraphs 1 and 2 of the orders sought on 29 May 2007 are general claims for departure without involving any specific claim. Paragraph 3 is a claim for departure by way of giving the mother credit for payments toward the support of the children and setting this off against her indebtedness to the father. These payments can only be for child support for the period up to 29 May 2007. In fact the mother only seeks credit for payments made up to March 2007. None of the payments come within the remaining periods in issue. Nor did the indebtedness of the mother up to 29 May 2007 which she seeks they set off, continue to exist after 8 June. I should not make the departure the mother seeks in paragraph 3.
The next claim the mother makes for departure is in paragraph 5. It is for half the cost of the children’s musical tuition and the like until they turn 18. As I have said, I only have jurisdiction in relation to the period covered by the orders the mother has sought a departure from ie: December 2005 to 31 December 2007, and of that I should only consider the period 9 June 2007 to 31 December 2007, some 29 weeks plus extensions from 1 January 2011 until each child reaches 18 years.
The mother specifically claims that the father should pay $2624.50 per annum, plus an additional 10% for repairs to musical instruments and the cost of musical events. There is no specific evidence to justify any increase over the actual estimates of costs. The whole claim is, at best, $2887.00 per year if the extra 10% is justified. For 29 weeks that would be $1610.00 or $240.58 per month. The mother claims, in paragraph 6, the replacement cost of the children’s musical instruments. The times for past replacement are outside the period covered by the application for departure, so this claim should not be allowed. The father disputes liability in future for this expense on the ground that it was the mother’s choice to have the children taught to play these instruments. That is not a valid ground if it is otherwise appropriate for them to play the instruments.
The next claim made by the mother in her application of 29 May 2007 is set out in paragraph 7. This claim is for fees and expenses paid by third parties, probably the mother’s sister and/or mother. The claim is for $2605.65, $1783.65 of which was paid in 2006. The claim for $1783.65, in my opinion, cannot be properly dealt with as a claim for child support from 9 June 2007 to the end of December 2007. This leaves a balance of $822.00. $250.00 of it is said to be sports fees for the public school the children attend and $822.00 for G’s music lessons. The mother has made a mathematical error. Her claim should have been for $2840.65 and the balance for 2007 should have been for $1057.00. However, this sum must have been spent before 9 June 2007, so should not be claimable.
The next claim is for the period after 29 May 2007. It is that the parties each pay the replacement and repair costs of any musical instrument used by the children which is lost or damaged while the child who uses it is in his or her care. This claim is made in paragraph 9. There is no evidence to support any claim of this nature, but it is not unreasonable to expect children to lose or damage their musical instruments. I do not accept that the parent in whose care the children are at the time should be wholly responsible for the cost of such an event. I regard such an order as unjust and inequitable. An order for the parties to share the cost according to their ability is more appropriate. For the same reason, I regard the mother’s claim in paragraph 14 of the same nature in relation to the costs of accidents the children might suffer whilst in a parent’s care as unjust but regard a requirement to share the net costs, that is; the gross cost less medical and hospital benefit refunds, according to their respective capacities to pay, as proper. However such costs are already factored into the administrative assessment of child support, as are the costs of broken or damaged musical instruments and should be regarded as part of any overall departure orders in preference to making specific orders to pay uncertain amounts.
Paragraphs 11, 12 & 13 of the mother’s claim seek that the father pay half the cost of public school fees and other costs payable to the children’s schools in relation to their education and educational activities until each child turns 18. In paragraphs 5 and 6, in addition to the tabulated costs and specific costs the mother seeks up to 31 December 2007, she seeks that the father pay half the costs of music tuition and expenses relating to it as well as for the purchase of their instruments until each child turns 18. My attitude to all these claims for departure by way of setting child support until the children become adults is that, if it is otherwise appropriate to depart from the current administrative assessments, and it is reasonable in view of the children’s interests, abilities and other activities that the parties should share the cost in a manner which is based on and calculated by reference to their respective reasonably assessed abilities to pay. This is not necessarily based on their actual income but may be more appropriately based on their capacity to earn if they are not employed in a manner which reflects their full capacity in all the circumstances. Ordinarily such costs are also factored into the usual administratively assessed child support. They should, if regarded as reasonably incurred, be simply taken into account when any departure application is calculated and decided.
The mother’s case for departure is essentially that she was originally assessed to pay more than she should have because the father works in what is commonly called “the cash economy” and understates his income for income tax and child support purposes. She also claims he has used his business to transport and hide assets ; being paintings and similar works of art, overseas. In addition, it is said that the father has a de facto wife who works and this allows him to share some costs to reduce his costs of living. By comparison, the mother claims that although she is employed full time by a not-for-profit organisation which she founded and of which she is the Chief Executive Officer, she does not receive a wage and is forced to live on such handouts as the organisation and her family members can afford. As Chief Executive Officer, she makes the decisions on handouts by the organisation.
As a result of orders made by Moore J in mid 2005, the three children should spend 9 nights with the mother and 5 with the father each fortnight during school terms and half of all school holidays with each parent. As there are 12 weeks of school holidays each year and 26 fortnights, the orders provide that they spend (9 x 26) + (7 x 6) = 276 days a year with the mother; that is, about 75% of their time with the mother and 25% with the father. It is likely that the cost of their care in respect of food, use of utilities and the like is shared in proportion to the time which the children are actually with each parent. The parents are in dispute over children’s orders. Their residential care orders are in dispute. The time the children usually spend with each party is too. The father says the children actually spend as much time with him as they do with the mother. He seeks equal time sharing orders. I may not be able to decide a fair apportionment of their child support obligations before I decide how to determine the dispute over children’s orders. The other children’s matters which I must decide are likely to have little or no influence on my final decision on departure orders.
The father’s attitude to the mother’s departure application is partially discernable, with difficulty, from his response to the mother’s application and his oral evidence. The response was filed on 4 April 2008. Paragraphs 4, 5 and 7 are the only child support orders the father seeks. However, his response to the orders the mother has sought for child support is a response to an application on which the mother did not rely. That application was filed on 20 July 2007. I am able, nevertheless, to identify the child support orders the father opposes in the mother’s application of 29 May 2007. They are orders 1, 2, 3, 5, 6, 7 and 8. He concedes that orders in terms of paragraphs 9, 11, 12, 13 and 14 should be made. In oral evidence he said he would pay half the costs of the children’s music lessons, thereby conceding paragraph 5, but withdrew his concession of order 9 and said he opposed it.
Essentially, he says of the child support orders he opposes that he cannot afford the payments claimed, has already paid his fair share of child support, has discharged past obligations of himself and the mother as a result of the terms of settlement of the de facto property dispute and wishes that after the 2007 year, child support be assessed by the Child Support Agency except to the extent of the orders the mother seeks which he agrees with, all of which he seems to suggest are for exceptional costs although they are mainly for the everyday cost of caring for children. He says, in relation to other extracurricular activities, that each parent should pay for those which he or she has chosen to involve the children in. He asserts that he is not as well off financially as the mother and that child support should be based on the ability of each to meet the costs of caring for the children. He says he spends much more time with the children than provided for by Moore J’s orders and that the costs to him of caring for the children should be calculated by taking this into account.
The Child Support Agency has made a number of assessments since that of 16 December 2006 and the appeals from it resulting in the decision of 13 March 2007. The subsequent administrative decisions have not been the subject of applications of the Court for departure. They were made for periods from 1 January 2008 to 31 December 2010. No objections were made against the ultimate administrative assessments, so I doubt whether I have jurisdiction for the periods they cover, despite what would otherwise be power to depart from the 1 January 2007 to 31 December 2007 assessment for an unlimited time.
If there is jurisdiction to depart from this assessment for periods outside and after 1 January 2007 to 31 December 2007 and up to 31 December 2010, it would be unjust to do so because the assessments which were made by the Child Support Agency for from 1 January 2008 to 31 December 2010 were for the whole of what were assessed to be fair and just obligations to pay child support in all the circumstances. Yet these assessments would be effectively altered, and the obligation of one party to pay child support increased by any departure order I might make for that period although there has been no appeal from the applicable existing administrative assessment which, therefore, ought to be regarded as proper in all circumstances. If I have jurisdiction to make departure orders for this period, I should decline to do so because they have a high potential to be unjust and inequitable.
The parties agree that at the time of hearing the father owed the mother $5504.36. He has been paying off his debt to the mother for child support at the rate of $499 per month and accepts that he should discharge the balance of $5504.36 at the same rate. As this is not the subject of a valid appeal I should make no orders for the payment of this sum. The father’s liability is a matter for the Child Support Agency.
The father has agreed to pay, in addition to the amount he owes, the following in addition to the ordinary living costs including costs of shoes and clothes of the children while they are in his care:
a)Half of the children’s public school fees and costs invoiced to the parties and required by the school and schools for each child until he or she turns 18.
b)Half of the … gifted and talented courses and other engagements related to the gifted and talented abilities of each child until he or she turns 18.
c)Half the orthodontic care costs for G until he turns 18.
d)Half of the balance of all medical and dental bills for each child until he or she turns 18.
e)The additional costs of any accident to each child if that accident occurs while the child is in his care until he or she turns 18.
However, as I have already explained, in an administrative assessment such costs are ordinarily intended to be provided for, not on a 50/50 basis but on the basis of a just division of the cost of raising each child.
Before considering the respective abilities of the parties to meet child support costs, something must be said about the parties because it ultimately relates to their credit. One can easily understand why, eventually, the Child Support Registrar declined to deal with the child support application because of its complexity. Each party is quite intelligent but without intellectual discipline. The mother is also quite obsessive and lacks a sense of proportion or consideration for any point of view but her own. She probably did to the Registrar something akin to what she did in the proceedings which I heard. Before me, she relied on an enormous amount of material without limiting it to what might be relevant or helpful, without presenting it in any logical order, without even sorting it so it was presented in the order she had originally intended. The volume of material seems to have prevented her from realising that even her general claims for the relevant periods were usually not supported by specific proof. A significant aspect of this is her failure to provide acceptable support for her claim to have little and insufficient income to support the children. Despite the father’s clearly expressed reliance on her failure to provide the Court with any tax returns, the mother has not placed any tax returns before the Court although once she knew his stance on this she had ample opportunity to do so. This seems particularly significant when compared to her reliance on a high volume of documents which have little or no probative value. The same is the case with her personal banking and employment records and the like.
There is, however, an affidavit sworn on 17 February 2010 in which the mother declares, without disclosing the sources, that her gross income has been:
2004-5 - $54000.00
2005-6 - $54000.00
2006-7 – Nil from employment and $15,000.00 from family allowances.
2007-8 – Nil from employment and $15,000.00 from family allowances.
2008-9 – About $25,000.00 - $30,000.00 as a contract call centre worker.
Exhibit “J” is subpoenaed records of a company to which the mother was contracted. She tendered it herself. Despite that, it demonstrates her lack of credit. It shows that she had a contract of employment with a firm called C Company from 29 January 2008 to 8 June 2008. She earned $11,851.87 gross from that employment. It also shows that from 12 May 2008 to 1 August 2009 she earned approximately $42,000.00 gross, about $33,000.00 of which was earned in the 2008-9 financial year.
She was working at an hourly rate when she was a contractor. She often worked 75 hours in a fortnight. That was not her only employment. She invented and founded a not-for-profit organisation in 2004 called X Co. She calls herself its Chief Executive Officer. Before she started this organisation she was an employee, for 13 years, of a European not-for-profit organisation doing similar work. Essentially, the mother produces films and holds seminars supposedly designed to teach an overseas population group to improve their quality of life and adopt better economic, agriculture, health, education, business and environmental practices. The income of the charity is, in part, spent on travel costs for the mother’s trips overseas.
Although she says she does not take a wage from her organisation, while she is away and probably to some extend while she is at home, the organisation meets her living expenses. Its registered office is her home. In 2007-8 its income was about $63,000.00. Of this, auditing, legal and consultancy expenses were claimed to be $25,651.00, travel expenses $4,896.00 and equipment expenses were $19,942.00, a total of about $50,500.00. One cannot say to whom the consultancy expenses and travel expenses were paid or for what the equipment expenses were. The fund lost $7,500.00 in that year. However, its main benefactor was quite certainly the mother.
In addition to the above outgoings in the 2007-8 financial year, there was a scholarship awarded to a student at a business training institute which is recognised in the financial accounts for 2007-8 as worth $18,425.00. This must have been for living expenses. So much could not have been expended on University tuition fees. $2,000 for the tuition fees of the scholarship holder was spent by the charity in 2008-9. The recipient of the scholarship was the mother. (see pages 2 and 9 of the financial report for the so called charity for 2008-9, which is, the first document in Exhibit “N”) No doubt the University fees were for her too. It is more probable than not that a very large part of the balance of the organisation’s income was also spent for the mother’s benefit. One of its other officers is her sister.
The depth of the mother’s resourcefulness in obtaining funds and the like while attempting to make it seem as if she has little or no income is seen from her financial statements. So far as I have been told, she filed four of these; on 23 March 2007, 13 May 2008, 4 August 2009 and 17 February 2010. She was engaged by C Company from 23 January 2008 to 1 August 2009. She worked for it as an independent contractor from 12 May 2008 to 1 August 2009 and as an employee before that. Her statement of financial circumstances of 4 August 2009 reveals that she had failed to file a tax return for the tax years ending in 2007, 2008 and 2009. In her financial statement filed on 17 February 2010, she responded with “Don’t know” to the question asking her to state her weekly income tax. In the 4 August 2009 financial statement she says she was then a self-employed contractor to the organisation she had commenced working for in January 2008, C Company, and had been employed for one year and six months. In her statement of financial circumstances sworn 17 February 2010 she says she is employed by the same firm but is “in between jobs, probably have to return to old job in a few weeks”, which indicates she can obtain contract work at will from C Company. Other documentary evidence indicates she had been working for it beyond 1 August 2009, but no specific income information is provided.
The reason Exhibit “J” only indicates employment up to early August 2009 is because the subpoena to that firm to produce the mother’s records was issued by the father on 4 August 2009 and the material was produced by letter dated 12 August to the Court on 14 August 2009. Exhibit “S” tendered by the mother, is a series of emails sent from 15 February 2010 to 21 February 2010 which indicate the mother has had another job. The emails indicate the mother was, as at 21 February; employed by a company, S Pty Limited. On 15 February she had enquired by email of a manager about rumours that their jobs might end. She complained that she needed steady full-time work, so it is not a case where her income is limited because she wishes to work part-time so she can parent the children. As will be seen later, her parenting could not be regarded as diligent.

In her statement of financial circumstances, the mother has estimated her average gross weekly income less child support and social security benefits as:
23 March 2007         –         $275 (from rent)
13 May 2008            –         $769.23 (from employment)
3 August 2009          –         $520 (from employment)
17 February 2010     –         $725 (from employment)
This is in, the two earliest instances, inconsistent with her affidavit of 17 February 2010 in which she swore she earned nothing in 2006-7 and 2007-8. I have calculated the weekly average gross income she earned from working for C Company and from 29 January 2008 to 3 August 2009 for various periods. The results are:
• 29.1.08-12.5.08: $11,292.30 gross over 15 weeks = $753 per week gross.
• 1.7.09-3.8.09: $4,152.81 gross over 5 weeks = $830.10 per week gross.
• 29.1.08-3.8.09: $53,370.60 gross over 79 weeks = $675 per week gross.
• 12.5.08-3.8..09: $42,077.86 gross over 64 weeks = $657 per week gross.
I cannot understand how she could have reached the figures she swore to be true in her financial statements of 13 May 2008 and 3 August 2009, although the 13 May claim is not significantly different from her average earnings to that date from the one employer she has disclosed.
Overall, despite the fact that in the 2006-7 and 2008-9 financial years the revenue of X Co, her “not-for-profit organisation”, was less than it was in 2007-8, although one cannot know from its financial statements on whom it spent the funds it received, I am quite lacking in satisfaction that I have any realistic idea of the mother’s true income including fringe benefits from her employment from 8 June 2007 to the date of hearing.
I did not form the impression that she was truthful but unable to prove her case because she was unrepresented. My strong impression was that she cannot be believed because she knowingly and deliberately attempted to manipulate the Court into believing what she wished it to believe rather than the truth by omission and distortion of whatever she decided was unhelpful to her case and exaggerate when she felt that would improve her case. She portrayed herself in relevant matters as a victim, which she is not. She also pretended, knowingly and untruthfully, that a Mr V who lives with her is a non paying boarder. From what the children told the Family Consultant, it is much more probable than not that she is in a defacto marriage with him. His financial circumstances are not known, but I do not accept, as the mother claims, that he contributes no funds to her household.
If she had earned as little as she pretends it would have been because she chose to do so for the perceived and actual benefits such as the free overseas travel, accommodation and education associated with X Co. Her earning capacity is quite high compared with her claimed earnings and I am not satisfied I know the net value of her assets.
Her education, attainments and experience attest to this. On 28 April 2009 she received the post graduate degree of Master of …. She was for 13 years the … Coordinator for a European agency. In the course of this employment she worked on programs for various underprivileged countries, and probably travelled to most of those places. She is a journalist and film maker and, as is said by International X, the European charity which employed her, “she was able to initiate and carry out demanding tasks in developing countries under very difficult circumstances.” For the last five years of her employment with that organisation she also “established and headed [its] […] Department” (see p4 Exhibit “M”). In her efforts with X Co she has raised finds or the like from French, Australian state, New Zealand and Chilean government agencies as well as from international businesses, a very prominent firm of Australian solicitors and other well known and significant donors and has worked extensively with overseas governments (see pages 3 & 13 Exhibit “M” – Annual Report for 2006). She regards her profession as author / cinematographer / photographer and … auditor (see page 3 Exhibit “M”, Annual Report for 2008).
The mother alleges the father has not been candid with the Court about his income. He has filed three financial statements which are before me. They were sworn on 23 April 2008, 14 August 2009 and 17 February 2010. The average gross weekly income from employment he disclosed in those is, respectively, $930.00, $1,500.00 and $1,500.00. His tax returns for 2000-1 to 2007-8 inclusive, except 2004-5, are in evidence. In 2007-8 his tax return discloses that his business was as a consultant and dealer and futures trader. He had received $26,454 in income from the provision of personal services to B Financial Services. Otherwise he had lost a net $84,183 from his commercial activities, $75,544 of which was deferred from the previous year. One can only wonder how he could have claimed on 23 April 2008 to have an average gross income of $930 per week. There is no tax return to compare with the father’s other two financial statements.
Tax returns and financial accounts for 2002-3 to 2007-8 inclusive are before the Court for the business of O Pty Limited which is operated by the father from his home. He is the owner of this business, if it can be called that. I say this because, if its records are accurate, its continuing existence from the time of its inception are difficult to justify, especially if the father has put more than minimal time and effort into it. The following table demonstrates this:

Year

Income $

Expenses $

Profit/Loss $

2002/3

52,941

90,192

-37,251

2003/4

91,603

99,577

-7,974

2004/5

3,625

47,602

-43,977

2005/6

32,265

40,706

-8,441

2006/7

131,346

96,731

+34,616

2007/8

31,095

14,204

+16,891

The accounts show that no wage payments were part of the outgoings of the company, apart from small sums for occasional casual employees. By the end of the 2007-8 tax year the company had a retained deficit of $46,136.00. The father’s financial statements sworn on 23 April 2008 and 17 February 2010 show his personal expenditure to be more than his income by $53.00 and $240.00 per week. When he swore his 14 August 2009 statement he said his expenditure each week was $382.00 less than his income. By his Financial Statement of 23 April 2008, he disclosed no substantial liquidatable assets except an inherited property overseas and debts of about $41,500.00. By the time he swore his 17 February 2010 statement his property and indebtedness were much the same.
When he gave evidence, the father impressed me as likely to have the about the same level of credibility as the mother other than in what the father said in criticism of the mother’s parenting ability and behaviour. I am no more satisfied that I know the father’s real income or financial situation for any relevant period than I am that I know the mother’s economic circumstances. I am quite sure I have no real idea about his net assets.
I am of the view that he is an intelligent and able person who has had experience in shares, bonds and futures trading and the like since 1997 and stockbroking since 1988. He founded and managed an investment fund on the A Exchange from 1997 to 2002 and worked on the R Futures Exchange from 1988 to 1993. He has a degree in Economics and qualifications and expertise in art, history, physical education and sport from France.
It does not appear to be coincidental that he too, in 1987, established a not for profit foundation. It purports to promote a cultural product in Europe. The mother claims he had exported the product and, without declaring it, holds a cache of it or the proceeds of sale of that cache overseas. I am satisfied that if the father does have the income he has disclosed, although I regard him as having a substantially greater income than that, it is because he has managed to accumulate undisclosed assets and has taken significant fringe benefits from his company. Although, very superficially, the father appears to have made a more detailed and franker disclosure of his financial circumstances than the mother, more careful examination shows his level of disclosure to be no better than hers. There is not one document from his supposed current employer, B Financial Services, a firm located overseas, or from any bank into which his income might be expected to have been deposited to substantiate his claimed earnings from it. It is noteworthy, too, that the father’s home address and business address are the same. I cannot tell to what extent his personal living costs are met by his business or what they really are. I am satisfied that he has not been candid about his ability to meet such costs whatever they might be.
For a Court to make a departure order it must be satisfied in the particular circumstances of the case that a ground for departure exists and that it would be just and equitable to all people directly involved; here, the three children, the mother and the father, and proper for the Court to make the order. The grounds which can be relied on are limited to those specified in s. 117(2) of the Child Support (Assessment) Act.
The assessment which the mother seeks departure from was actually made on 16 December 2006. The only subsequent administrative decisions were that the matter was too complex to make any departure order. The decisions upon which this assessment was made which affect the parties after 8 June 2007 are the setting of the father’s child support income at $41,600.00 p.a. from 19 January 2007 to 31 December 2007 and that for the mother for the same period at $56,350.00. The effect is that the mother was to pay the father $3,540.00 p.a. or $295 per month for the relevant part of 2007 i.e. from 9 June to 31 December which amounts to $1985.00 by my calculations.
This amount was determined as payable by the mother to the father despite the mother carrying more of the day to day living costs of the children because they mainly live with her. As I have said, the orders of Moore J provide that they live with the mother for about 75% of the time. The father claims this is not a true reflection of the actual time the children spend with each party because the mother often asks him to take the children when she is away or has other priorities and that equal time is closer to the reality. I accept that the mother does this but do not accept that the father’s evidence establishes an equal time regime. It is most likely that the children spend about 40% of their time with the father and about 60% with the mother. The evidence of the parties on this was not very specific and this estimate is the best that I can make of it given that I regard each as somewhat lacking in credibility. I have paid regard to a comment of one of the children to the Family Consultant that it seems like a long time between visits to the father. The comment was made in circumstances where all children have good relationships with both parents. It indicates a clearly discernible preponderance in the time the children spend with the mother.
The father lives with Ms P. She says she is an entertainer. In his financial statements he made inconsistent claims about her earnings. In order of time he claimed she earned $300.00, $400.00, and $200.00 per week on average. At the time of hearing when he said she earned $200.00 per week. Her oral evidence was that she charges $13,000.00 per day of work doing promotional work and $800.00 per day for other work but that she sometimes gets less than these rates. She said she does not work often but earns from $10,000.00 to $30,000.00 per year. She was very vague about this. She produced no records. She and the father have a daughter, N. I do not know much about her except that she was born in December 2007 and may play a part in Ms P’s reduced ability to earn income. Her estimate of her earnings establishes that she averages not less than $200.00 per week but that she could be earning as much as $575.00 per week on average. I do not believe her. It is probable that she earns considerably more. I do not know if she has assets.
The mother’s claim about her living costs are quite outrageous by comparison to her claimed earnings. In her financial statements she made these claims:
23.3.2007Gross weekly income including social security: $665 per week. Outgoings: $2730.00. Difference: $2065 per week.
13.5.2008Gross income including social security: $1002.00 per week. Weekly expenditure: $6038.00. Difference: $5036.00 per week.
4.8.2009Gross income including social security: $520.00 per week. Weekly expenditure: $1227.00. Difference: $707.00 per week.
17.2.2010Gross income including social security: $725.00 per week. Weekly expenditure: $1504.00. Difference: $779.00 per week.
I do not believe these figures reflect the truth or allow me to understand her real financial needs and circumstances.
Thus it is impossible to be satisfied that any grounds exist for departure. All are based upon the ability of each parent to meet the costs of care of the children in question in view of their economic situation and the children’s reasonable needs in view of those circumstances. Where the grounds depend on adoption of a set formula based on adjusted taxable income, the adjusted taxable income cannot be calculated. I do not have any realistic idea of what that might in truth be for either party. I certainly do not accept what the respective parties say their taxable incomes are.
I have considered every matter to be considered pursuant to s. 117(2) of the Act; each paragraph and subparagraph as well as subsections (2B), (3A), and (3B) of s. 117. I cannot conclude that there have been any grounds for departure established and, despite the concessions made by the father, I cannot make a departure order for the period 9 June 2007 to 31 December 2007 or from 1 January 2011. Further, I should not assume that the assessment or assessments which have been made or will be made for any period after 31 December 2007 do not already take the matters which the mother claims require specific orders for the time after 31 December 2007 into account. I should and shall refuse the mother’s application for departure.
Although the pleadings which were put before me involve a relatively large number of petty claims for children’s orders, the major issue between the parties is over the amount of time the children are to spend with each party. That some of the claims are petty is not a reason to fail to make orders which will best avoid conflict between the parties.
The father wants a change to equal time while the mother seeks to maintain the status quo. This is made clear by the Family Report of Ms K of 14 December 2009 which is Exhibit “C”. It is worthwhile at this stage to state that after Ms K, an experienced Family Consultant, interviewed the mother, father, Ms P and the three children she was so pessimistic about the parent’s abilities or willingness to undertake the intensive therapeutic program she felt they needed that she recommended no change to the children’s ordinary residential regime and recommended no more that than the parties seek guidance from W’s school counsellor to obtain counselling for him.
The pleadings which are before me do not reflect that there is a dispute between the parties over children’s orders. I shall, nevertheless, regard this dispute as significant and one which must be resolved by the Court. It is really a dispute over 2 days each fortnight during school term. In order to take the prospect of confusion out of the balance of children’s issues between the parties I shall list each specifically:
Application of the mother filed 29 May 2007:
Paragraph 10 – That the father take the children to “their lessons or events” when they fall on days when they reside with him – This is also sought in paragraph 14 of the 25 June 2008 application. The father agrees with this in paragraph 12 of his response to the application the mother filed on 20 July 2007 unless he has a special event at the same time. However in his response, in paragraph 6, he asks that each parent be responsible for “their own extra curricular activities when the children are in their care.” In paragraph 14 the father asks for an order that the children not be enrolled by the mother in classes on his care days without his consent.
Paragraph 18 – That an order define the terms of email and telephone contact between the father or Ms P and the mother “until such times as the parties can communicate effectively.” – The father agrees to this (see paragraph 24 of Response and paragraph 24 of the 20 July 2007 Application, but I could not make an order which is intended to be for a finite period where the actual period is uncertain.
Application of the mother filed 25 June 2008:
Paragraph 9 – That the father be restrained from photographing, filming and recording the mother – The father has not pleaded to this because this claim was not made in the mother’s application of 20 July 2007. I shall assume he does not consent to it.
Paragraph 10 – That the father be restrained from coming within 200m of the mother’s places of work or residence – The father pleaded to the 20 July 2007 claim which is identical except it asks for a 500m exclusion zone. The father resists this on the ground that the mother’s home is less than 500m from H Public School which two of the children attend. I can rely on universally available maps to ascertain that U Street, near the corner of H Road, H, where the mother lives and works, is less than 300m from H Public School and is approximately 200m in from it. I regard this claim as opposed by the father.
Paragraph 11 – That “The father be restrained from photographing, filming and recording the children for purposes of litigation and denigration of the mother.” – This has not been pleaded to because it is not sought in the mother’s application of 20 July 2007. Nevertheless the father has asked for a mutual non-denigration order while in the children’s presence or hearing. Such an order already exists, so there is no need to make it. Moore J provided it as Order 5 in her final orders. Neither party has sought its discharge. It covers the mother’s claim for the specific non-denigration aspect of it. I shall assume the father opposes the mother’s claim to prevent him photographing etc the children for the purposes of litigation.
Paragraph 15 – That the mother have sole responsibility for making decisions about the children’s general education and their musical and other extracurricular education and activities until each turns 18 years – This is not pleaded to by the father except that in paragraph 6 of the orders the father seeks he asks that each parent be “responsible for their [the children’s] own extra curricular activities” when the children are with that parent. The inference from other orders the father seeks and from his conduct of the proceedings is that he opposes this aspect of the mother’s application.
Paragraph 17 – That the mother be given make up time with the children to compensate for time lost “by way of illness or professional engagement.” – This claim is not pleaded to by the father because it was not claimed in the mother’s application of 20 July 2007, but he opposes it.
Paragraph 21 – That the children reside with the mother on the night before “any exam.” – This too is not pleaded to for the usual reason and should be assumed to be opposed.
The father seeks some more or less specific children’s orders in addition to those which I have already mentioned. These are:
Response 4 April 2008:
Paragraph 2 – That the children use the surname Chambers-Dubois and be identified by that surname at all times by the parties. – The mother does not appear to have given any attention to this claim. I shall assume she does not consent to it because she has used the name “Chambers” alone for the children.
Paragraph 3 – That each parent be restrained from interfering with the “professional life” of the other, and that the mother be restrained from “interfering with the father’s clients” and from “entering the Father’s events”. – The mother has not responded to these claims, but I shall not deal with them as I do not have jurisdiction to do so.
Paragraphs 8 and 9 – That the children be delivered to school on changeover days in clean and otherwise appropriate clothing and shoes and be delivered to school on the next changeover day in the same clothing and shoes and on holiday changeovers be delivered with their school bags and the school clothes and shoes they were wearing when collected from school. – I shall assume the mother does not consent to this type of order.
Paragraph 10 – That the children spend from after school until 7pm during school term and from 2pm to 6pm during school holidays with each parent on that parent’s birthday. – This has not been addressed by the mother. It is similar to the orders made for contact on the children’s birthdays by Moore J. I have no reason to believe the mother might oppose this order.
Paragraph 13 – That when a child has a school event which is to occur while the child is residing with the mother the mother is to give notice of such event to the father by email. – I shall assume this is not consented to.
Paragraph 15 – That if a parent has the children for the second half of school holidays the other parties’ first period with the children is to commence at the earliest time it could possibly start in the first cycle of the regime for dividing time between the parents. – The inference is that the mother does not consent to this order.

The children’s issues demonstrate the reality of the situation between the parents in which these unfortunate children must live. There are two overwhelming characteristics of the dispute. One is that there is virtually no evidence from the parties on most of the issues. The other is that the sparse evidence they have directed at the children’s issues, including that over the time the children should spend with each party, fails to address the children’s needs and is wholly directed a the parties wishes, mainly their convenience, and the financial disadvantages each says he or she will have as a result of the orders the other seeks or opposes.
One only needs to read the first 27 paragraphs of the father’s principal affidavit, sworn 4 February 2008, to discern that his case for the children to spend more time with him is an attempt to prove the mother has more income than she admits, thereby increasing his child support rights or reducing his liability for it to the mother. There is much to be said for the mother’s allegation that the father’s claim for equal time residency of the children is really motivated by his wish to gain further advantage over the mother in child support assessments.
My assessment of the mother is that her attitudes to the residency regime have been formed with much the same view. The mother places little or no value on the benefit to the children of a good relationship with their father and believes or feels she should have the sole entitlement to make and implement all decisions involved in raising the children with the exception that the father should pay what she considers is his share of the cost involved. Whereas the mother seems to me to have unrealistically high demands and expectations for the children and, at least for the two boys, an unjustified view that they have exceptional abilities, there is evidence which I accept that she does not pay enough attention to their day to day care despite involving them in and transporting them to what seems to be an inordinate number of extracurricular activities.
The father has, in my assessment and despite his selfishness, a more balanced approach to all three children. He says, and I accept, that he helps them with school work and teaches them French which they speak to him in his home and that he pays attention to their needs and feelings to a greater extent than the mother does. I find that he and Ms P have provided a normal loving home environment for all three children.
On 30 June 2005 the Honourable Justice Moore made these children’s orders:
1.The children [E Chambers-Dubois] born [in] July 1996, [G Chambers-Dubois] born [in] October 1998, and [W Chambers-Dubois] born [in] November 2001 live with their father as follows:
(a)Each alternate week from after school (or preschool) from Wednesday until the start of school (or preschool) on the following Monday.
(b)For one half of each school holiday period as agreed and, failing agreement, for the first half in 2005 and alternate years thereafter and for the second half in 2006 and alternate years thereafter.
2.Notwithstanding orders 1(a) and/or 1(b) hereof:
(i)the children are to spend from 9am Christmas Eve until midday on Christmas Day in each even numbered year and from midday on Christmas Day until 6pm Boxing Day in each odd numbered year with their mother;
(ii)the children are to spend part of their birthday with each parent (all three to attend together) and if that is a school day they are to be in the care of the parent with whom they are not then living from after school until 7pm and if it is not a school day from 2pm to 6pm;
(iii)the children are to spend Father’s Day with their father and if that is a weekend they are to be living with their mother they are to be delivered to their father at 6pm Saturday of that weekend and remain there until the start of school on Monday;
(iv)the children are to spend Mother’s Day with their mother and if that is a weekend they are to be living with their father they are to be delivered to their mother at 6pm Saturday of that weekend and remain there until the start of school on Monday;
3.The children are to live with their mother at all other times save for those referred to in orders 1 and 2 hereof.
4.Should either of the parents intend to be absent from Sydney during any period the children are scheduled to be in the care of that parent pursuant to orders 1, 2 or 3 hereof then -
(i)the parent is to notify the other in writing as soon as practicable and seek the consent of the other parent to care for the children during their absence; and
(ii)the parent notified is to respond in writing as soon as practicable, but in any event within 72 hours, and should that parent be unable to care for the children during the period of absence or fail to respond in writing within the time stipulated the parent who will be absent will be at liberty to make such arrangements for the children’s care as that parent deems appropriate and notify the children’s schools or pre-school accordingly.
5.Each party is restrained and an injunction is granted restraining them from abusing or making denigrating remarks about the other parent either to the other parent or to the children or in the children’s presence or hearing.
There is much to be said for the view that because so little has changed in the children’s circumstances since her Honour made these orders, the mother’s applications and father’s cross-application ought to be summarily dismissed. The judgment of Moore J says little about matters which really touch upon the children’s needs and welfare because, it is inferred, there was so little evidence about it. It is likely that then, as is the situation now, the concentration was on the parties’ differences in a manner which did not endow the Court with the ability to discern the facts and where the truth lay. It inclines one to appreciate that little has changed. However, because I regard the children as needy, I think it is in their interest that I deal with the issues between the parents as best I can in the hope, probably in vain, that what I say will change the parents’ attitudes a little for the better in relation to their children.
Virtually the sole source of the information which might permit me to decide where the children’s best interests lie is the family report of Ms K dated 14 December 2009. I accept her observations and assessment of the children. She says of E, who is in a selective stream in year 8 at a comprehensive public high school; Y Secondary College, and who was a little more than 13 years old when she was interviewed, that she likes the residential arrangements implemented by Justice Moore but would accept an equal sharing of time because she would spend more of it with her infant half-sister N. She would like a degree of flexibility in whatever arrangements are made. One ought to expect that attitude from a girl of her age. It is a pity that the parents are so insular and entrenched in conflict that the Court cannot to any great extent meet E’s need for flexibility. Orders to such effect are not practical because they will allow increased parental conflict.
According to Ms K’s enquiries, E is underperforming at school and is not interested in school work. Her school behaviour is characteristic of boredom but she has recently made attempts to improve and has improved a little. Her school is concerned she is not meeting her potential. She is nevertheless talented in music, public speaking and debating. She appears to be undermined by the dispute between her parents, who blame one another for any problem E has and cannot behave co-operatively or with her welfare rather than their individual wants in mind. In view of this, I cannot accept that any change in residential arrangements will improve her situation and advance her welfare. Y Secondary College is not significantly closer to the father’s home than to the mother’s home. It is about 2km from both.
G is in Year 6 at H Public School. It is exceptionally close to the mother’s home and less than 1km from that of the father. Ms K said virtually nothing about her assessment of G which might assist the Court to decide what is in his best interests. She did note he has a “well-developed sense of fairness” but understood a change in living arrangements would not end the fighting between his parents; presumably over the children. He said it would feel “more equal” to him. He commented that it seemed to him to be a lengthy wait between visits to his father.
Enquiries by Ms K of G’s teacher indicated that he has no behavioural problems which manifest themselves at school and that he copes well and seems happy. He is said to be “above the State average” in maths and English. This seems to indicate that he is not gifted and talented and is not of exceptional intellect.
It is quite instructive that G’s teacher informed Ms K that she had not met the mother and had met the father. This might appear to be strange in view of the mother’s claimed concern and seeming preoccupation with the intellectual attainments of her children, but it is consistent with my assessment of her. This is also consistent with the teacher’s observation that G had come to school poorly dressed on a few occasions. Other evidence suggests that there has been ongoing conflict between the parents over the children’s clothes. The father alleges the mother does not buy appropriate clothes or wash and care for their clothes adequately. He says he does, but that good clothes he provides are not returned if the children wear them on going to stay with the mother. I think it is more probable than not that this is the case and that the mother’s belief that the father does not contribute sufficiently to child support is behind the problem, but that the father, too, probably contributes to it by sending the children to school in the inappropriate clothes which came with them when they came from the mother.
W also attends H Public School and is in Year 3. He, too, seems to have provided Ms K with little upon which to decide what is best for him. She says little about him from her own experience, although she did notice that his responses indicate that the mother had discussed her conflict with the father with the children, as I have no doubt she has. He failed to say whether or not he would like to change his current residential arrangement. Ms K said nothing to indicate that she noticed anything out of the ordinary about his abilities.
W’s teacher told Ms K that he is creative but easily distracted from his lessons and an average student. The teacher said she felt he is very withdrawn and depressed and was very concerned about his wellbeing. It is surprising that Ms K said nothing to indicate she had noticed this. The teacher, of course, noticed that, like E, he was stressed about issues created by the parental dispute such as who would pay for school outings. However, with W, the teacher was quite concerned that often W comes to school without lunch or anything to drink and is often dirty. He does not complete homework and frequently loses his schoolwork and is unprepared for the day. This is usually associated with the periods when he lives with the mother. Although the teacher has spoken to the father frequently, she has only met the mother once. It is not a coincidence that Ms K heard an identical comment from G’s teacher. It is not coincidental that Ms K noticed with both E and W that they seemed to react to or cope with the parental conflict by distancing themselves and disengaging from it. Ms K noticed that all three children are closely involved with N who is greatly attached to them. Although it is not part of the deliberative process to take N’s welfare into account, one can infer from her attachment to the children that they are close to her.
Ms K makes one observation which I regard as being of great importance to any determination of the orders which will best advance the children’s welfare. She said, in response to E’s obvious need for flexibility in parenting arrangements, “it is not possible with these parents”. I agree. The parties, especially the mother, will attempt to use a lack of precision in the identification of any dividing line in parenting arrangements to her perceived advantage, and will, almost certainly, interpret it in a manner which meets her wishes and needs and is against the father’s interest and not to his liking. The children will rightly believe her interpretation to be unfair as between the parents. The Court would be unrealistically optimistic to even hope the mother would be able and willing to use any discretion she is given or flexibility in arrangements to advance the children’s welfare when that conflicts with her own wishes and impulses.
Ms K reached another important conclusion. It is that the children are not unanimously in favour of week about residency, as the father claims. This is in the context that, over the 5 years since the matter came before Moore J, the effect of the conflict and parental dysfunction “is now immeasurable” and “can only get worse”; meaning the children can be seen to have been and will continue to be adversely affected by the parental dysfunction and resultant entrenched conflict by comparison to when they were seen for the purpose of the hearing before Moore J. Ms Barker rightly observed “The children are missing out on opportunities to support and extend their education because the parents are fighting about who will pay. In the least, the parents spend an inordinate amount of time focussing on the conflict when this emotional energy, time and money could have been directed towards [the welfare of] the children”.
I agree with Ms K when she said “In weighing up the advantages of each of the three options (which are: equal time, maintain the 9/5 regime, or a reduction of the amount of time the children spend with their father), the existence of an extremely poor pattern of parental communication and a high level of distrust and psychological hostility between the parents emerges as a primary factor”. She concluded that because they live close to one another and there are no other variables apart from the parental inability to cooperate on any issue and the regular propensity they have to make small issues into major disputes, there is no reason to believe the adoption of an equal time residential regime would be likely to result in a better outcome for the children.
To reach this conclusion Ms K correctly relied on the fact that, although the father would like equal time, much of his motivation stems from the advantage it would give him in the child support conflict, not only because of a likely change in assessment in his favour, but significantly, because he would be better able to defeat the mother’s involvement of the children in extracurricular activities he must directly or indirectly finance to some extent.
Two additional days each fortnight are thought by Ms K as unlikely to alleviate the mother’s level of neglect of the children in the circumstances that this is, to a significant degree, dictated by the number of changeovers which would not change significantly enough to warrant such a change. Any advantage created by additional time with the father, in Ms K’s opinion, would be enough to overwhelm the mother with so much additional bitterness and animosity towards him that she would be likely to start behaving even more extremely toward the father and the children’s relationships with him than she does now. Overall, equal time would harm the children in the long term. I agree, especially because the children are close to the mother. They have always been principally in her care. The mother is already unwilling and therefore unable to control her adverse feelings about the father and her reactions to them.
The other alternatives are simply dealt with in Ms K’s mind. She says any reduction in time with the father, which neither party seeks, would only “seem to punish the children”. The inference is that they benefit from the time with him that they have. The maintenance of the status quo, she believes “could not make the situation any worse for the children than it currently is”. Nevertheless, Ms K recommends discharge of Order 4 by Moore J because it is a fertile source of discord between the parents. Neither is willing to tell the other that he or she will become unavailable to care for the children at any time because of fear more residence time with the other will adversely affect his or her child support obligations and entitlements. Each claims the other is often in breach of the order. It is not surprising that Ms K otherwise recommends no change.
One must appreciate the objects of the Family Law Act in order to properly determine what parenting orders to make. Section 60B requires the Court to seek to ensure that children grow up with the benefit of both parents having a meaningful involvement in their lives so far as is consistent with their best interests and that children receive proper parenting which is adequate to help them achieve their full potential. The Court must ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. There is also a requirement to prevent physical and psychological harm and the like.
The basis for the objects of the Act are the principles that each child, unless it is in the child’s best interest to provide otherwise, ought to know and be cared for by both parents and has a right to spend time on a regular basis with, and communicate regularly with, not only both parents but others such as siblings and grandparents who are significant to them, and that parents should jointly share the duties and responsibilities of raising their children. Another principle is that children have a right to enjoy their culture. This includes the right to do so with others of the same culture. Finally, the Act imposes the principle that the parents should agree about the future parenting of their children.
Of the last mentioned principle, it is fair to say that the Court’s processes encourage agreement between parents. By the stage when a judgment is being written after a highly contested hearing where the orders the parties seek differ greatly in effect and where the parties have been critical to the point of condemnation of one another’s character, parental ability and actual parenting, there is very little agreement between the parents and little likelihood of gaining agreement despite the Court’s unremitting efforts to encourage it.
Section 60CA of the Act can be regarded as the pivotal statutory provision in children’s cases. It provides that although the Court must decide on the living arrangements for a child by having regard to the wishes and needs of the adults who are contesting the proceedings and others with an interest in the outcome, the paramount consideration is the best interests of the child. In deciding what is in a child’s best interests, the Court must, due to s60CC of the Act, consider certain prescribed matters. I shall return to these.
Neither parent specifically seeks an order that he or she have sole parental responsibility for making and implementing the important decisions which must be made in raising children. Both ask for orders which give him or her sole responsibility for specific matters. If no parenting order is made by the Court or if no order for parental responsibility is made, each of the parents has parental responsibility for each of their children (s. 61C). This means that both parents have an equal right to make the decisions which are necessary to raise each child properly but do not necessarily have to behave co-operatively or jointly agree. The circumstances will determine whether their responsibilities have been discharged properly. The right is joint and several, meaning that co-operation between a child’s parents is preferable rather than necessary where they both have equal parental responsibility under the Act. Because of s. 61C(3) of the Act, the Court is able to make orders which change the otherwise statutorily equal right parents have to make decisions of significance to their children’s welfare.

S. 61DA has often been erroneously understood to create a presumption that unless there is a reason to depart from it, children’s best interests are served by spending equal time with each parent. The actual presumption created by s. 61DA is rebuttable and only arises if the Court must make a parenting order. If it is in the best interests of a child for its parents to have equal shared parental responsibility for it as opposed to the statutory situation where both have parental responsibility which is not necessary equally or jointly assertable. This does not mean that there is any presumption which favours equal time with each parent. It does mean that where the Court is to make parenting orders, the Court is to apply this presumption unless there are reasonable grounds to believe child abuse or family violence has been committed at a relevant time by a parent of the child or someone that parent lives with or it is otherwise rebutted by proof that it is not in the children’s best interests for there to be equal shared parental responsibility. I shall make my decision with the presumption in mind and apply it unless it is rebutted.
Of course, this is a case where each parent is seeking orders which do not give them equal shared parental responsibility. Because of the definition of “parental responsibility” in s. 61B of the Act, the matters which come under its umbrella are all encompassing. It is defined as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” not merely all of them apart from defined exceptions.
This effect of s. 61B arises from the use of the word “all”in the definition of parental responsibility. This eliminates any interpretation of “equal shared parental responsibility” as including a situation where there is exclusive responsibility for some matters in one or the other parent, yet the balance of matters which have not been the subject of exclusivity orders, being the balance of areas of responsibility which both parents share, can be regarded as “equal shared parental responsibility”. It cannot because it is not responsibility for “all” the duties, powers, responsibility and authority which parents have in relation to children. It follows that, if an order for a significant long term aspect of a child’s life gives one parent exclusive responsibility, there cannot be another order which provides or is to provide that the parties have equal shared parental responsibility.
Thus, in the extreme, if parents disagree on the colour of the socks one wishes to buy their child, the Court must be open to resolve the dispute despite the fact that the colour will not affect the child’s life and welfare at all. A parent can make a decision about such minor matters without consulting the other. s65DAE allows this of a parent with whom a child is spending time during that time because it permits that parent in that situation to make decisions on issues which cannot be regarded as “major long term” ones without consultation.
Here, the parties are in dispute over each other’s claim to sole responsibility for making decisions on the children’s education and their musical and other extracurricular activities as opposed to the father’s claim to have the entitlement to decide what extracurricular activities the children undertake when they are in his care. He accepts that the mother should be able to decide what they do in this respect when the children are with her He opposes the balance of the mother’s sole responsibility claim. This and the claim of the father that the children should use the surname Chambers-Dubois ought to be regarded as major long term issues. The father’s claim about return of the clothing which the children were sent to the other parent in, in my opinion is not a major long term issue.
Section 65DAA(1) of the Act is: “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 provision in the order) for the child to spend equal time with each of the parents.
If an order for equal time is not made, the Court must consider whether it would be in Sierra’s best interests to spend substantial and significant time with each parent and whether such an order is reasonably practicable. If it is, the Court must consider making an order which achieves this (s 65DAA(2)). The Act determines the meaning of “substantial and significant time”. Orders can only achieve that if they allow the child to spend weekends, holidays, weekdays and periods when the child is not on school holidays with each parent and also allows each to be involved in the child’s daily routine and to take part in special occasions and events which are significant to the child and allow the child to take part in events which are significant to each parent (s 65DAA(3)).
In deciding whether it is reasonably practical to spend either equal time or substantial and significant time, the Court is required to consider the distance between the homes or proposed homes of the parents, their capacity and future capacity to implement the arrangements involved in achieving equal or substantial and significant time, the parties’ ability to communicate and resolve problems which could arise in implementing the arrangements, the impact the arrangements are likely to have on the child and any other relevant matters (s65DAA(5)).
This does not alter the obligation of the Court to regard the best interests of the child as of the paramount importance because of s. 61CA, thereby making the issue of reasonable practicability of lesser importance. It is a consequence of subsections 65DAA(1)(a) and DAA(2)(c) that one must determine what is in a child’s best interests before deciding whether or not they spend equal or substantial and significant time with the parents.
The s60CA requirement to regard the bests interests of the child as the paramount consideration does not mean that the needs and wishes of the parents are to be ignored. These must also be taken into account and weighed with the matters touching the best interests of the child. In deciding what is in a child’s best interests, the Act prescribes certain matters which must be considered if there is evidence about them. S60CC creates the scheme for these considerations.
There are two matters, called primary considerations in s60CC(2), which are the most important considerations. There are 13 matters, called additional considerations, which are listed in s60CC(3). I shall deal with the considerations required by s60CC in the order in which they appear in that section of the Act. The primary considerations do not necessarily outweigh the additional considerations. If they did, there would be no point in providing for additional considerations.
The first primary consideration is the benefit to each child of having a meaningful relationship with both parents. Here I accept the evidence of the father to the effect that the mother habitually attempts to have the children side with her in the parental dispute and that in doing so, she intentionally disparages the father and attempts to undermine their relationships with him. Although little detail is given by Ms K in her reports, there is a suggestion that G has a particularly good relationship with the father because he said something to indicate a need for more time with the father. Otherwise, the objective evidence on this is clear. The children have warm and close relationships with both parents despite the likely widespread shortcomings the parties have as parents.
One would expect, because the mother is unlikely to end her efforts to gain the allegiance of the children with W, due to his age and the fact that he noticeably tried when interviewed by the Family Consultant to be “loyal” to the mother, being especially vulnerable to this, that it would be in the best interests of the children to alter the living regime of the children to give the father more time with them as a means of overcoming the mother’s conduct which tends to undermine the children’s relationship with the father.
Nevertheless, a small change in the arrangements will not make much difference other than to further anger the mother. In all likelihood, it would make her more committed to undermining the father’s image in the children’s mind. Because her efforts so far have been prolonged although they have not resulted in any noticeable distancing of the children emotionally from the father, there is little likelihood of benefit from a changed regime. The mother’s attempts to alienate the children have probably been continuing since the hearing before Moore J at least, possibly considerably longer. At the hearing before Moore J, the mother attempted character assassination of the father which, although it was mainly a criticism of his parenting, did not result in any finding of a lack of parenting ability in the father when compared with the mother. The problem is that the long term effects, if any, of the mother’s behaviour cannot be known. It is known that it puts the children at an unacceptable risk of harm which should be avoided.
The other primary consideration is the need to protect the children from physical and psychological harm caused by being exposed to and subjected to abuse, neglect or family violence. “Abuse” is limited by its definition in the Act to physical abuse. It does not include psychological abuse. There is no evidence that either party has exposed or subjected any child to physical abuse or family violence.
I find the father’s allegations that the mother sent all the children to school at times without being washed and with dirty and damaged clothes and shoes to be probably true. There is confirmation in observations from G’s and W’s teachers. E is likely to be better able to look after herself so her condition is probably not as noticeable. Generally, I am satisfied that the mother is so self-centred that she does fail to provide for the children by way of care to an extent which can be regarded as neglect, but the level of neglect is likely to be quite minor. It is not, however, merely a manifestation of her belief that the father does not provide enough child support and her reaction in allowing the children to wear worn or torn clothing and shoes. W’s failure to take lunch and a drink to school and the loss of his homework and school work are likely to be manifestations of lack of supervision and insufficient care by the mother. So is their observable lack of cleanliness and personal hygiene. I am satisfied that, when the children are with the father, he cares for them diligently. I accept Ms P’s view that the children “don’t feel they are looked after by their mum” and that their feelings in this regard are based on the reality of their experience.
The first additional factor which is to be considered in the scheme imposed by s65DAA(1), (2) and (3) is any relevant views expressed by a child and the factors relevant to the weight these should be given. Each party has said things to indicate the children want to do what he or she wants in respect of their regime. The mother claims the children want to continue all the extracurricular activities she has arranged for them. I do not regard anything the children have told either parent as more likely to be an expression of their true wishes and feelings of need than of their need to please the parent they have told or, at least, their need to avoid being accused by that parent of favouring the other parent, as E acknowledged to Ms K. Nevertheless, G said the periods between times with the father seem long, but he may have said this to reflect his view of the need for fairness to his father rather than to himself based on his own feelings and needs.
The next additional matter to be considered is the relationship the children have with the parties and other people who are significant to them. I have already canvassed all I accept that I know about the children’s relationship with the parents. I do not accept what each party has said about the children’s relationships with the other parent.
The only others who I know of who are significant to the children are Ms P and N. The mother has a live-in boyfriend, Mr V, but I know nothing of his relationship with the children except that they may be ambivalent about him because the mother is. The children are close to N and seem likely to benefit from a continuation of this. There is no indication that the mother has undermined and attempted to diminish it. The children were seen to be comfortable when in a “family setting” with the father and Ms P. She impressed me as well disposed toward and positive about the children and their residence in her household and as part of her family and to be a suitable surrogate mother for them.
An important consideration in the circumstances of the matter is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. It is my conclusion from the evidence and my assessment of the parties from seeing them give evidence, which in this instance is more than sufficient, that the father has the ability and is willing to facilitate and encourage the children to continue to have a good relationship with the mother. The mother may be said to have the ability to do this but is quite unwilling to foster continuing good relationships between each child and her or his father. As she does not have the ability to change, she really does not have the ability to do this.
The Court must consider the effect of any of the changes in each child’s circumstances which might result from any of the orders the Court might make or which either of the parties seek. There will be little change from the present if the orders the mother seeks are made. If the orders the father seeks are made, all but one or two will result in little or no significant change in any child’s circumstances. If the mother must return the children in the clothes in which they went to her from the father and those clothes must be clean and tidy on school days, this is likely to make a difference to the way in which G and W are viewed by teachers and, in a few years, by their peers. This may benefit them either because they are treated as more able and less neglected or because their self-esteem is raised or both.
Practical difficulty in the children spending time with both parties must be considered pursuant to s60CC(3)(e) as must the expense involved. The consideration is similar to but not identical with the consideration required by s65DAA(1)(b) & (2)(d). The travel expense of equal time as compared with the current regime, which is within the definition of substantial and significant time, would be identical because the same number of changeovers per fortnight and virtually the same number per year would be involved. The father might be faced with greater expense and the mother less in providing for the children’s daily needs because of an increase in days with the father from the present regime, but the father does not seem to regard that as an impediment to his claim for equal time and any change in the burden of cost of maintaining the children will not effect the children’s rights to maintain personal relationships and direct contacts with both parents on a regular basis. The parents live very close to one another.
The real thrust of the father’s case, one which is recognised by the family consultant is his claim that the mother does not provide properly for the children’s physical and emotional needs. The mother claims the father does not provide for their intellectual needs.
In my view, the mother is probably not providing properly for the boys physical and intellectual needs. She dresses them badly and neglects to ensure they are clean and properly fed. She has an inflated and probably highly unrealistic view of their academic ability. In W’s case she has so far ignored advice from his school that he needs counselling for emotional dysfunction. Although the father has criticised the mother about this, he has done nothing to obtain counselling for W. The mother’s ambitions for E may be justified. It is a matter of opinion whether she should or should not be pushed or encouraged to achieve to the extent the mother has pushed or encouraged her. The Court is not equipped, in the absence of expert evidence, to judge this. It is likely that E, because of her age, can look after herself in relevant ways so she is not physically neglected. However, there is some evidence which suggests she is not being subjected to enough supervision by the mother or father and that she has not been given a sufficiently clear message by her parents about the boundaries she must keep.
Generally speaking, the father is more capable as a parent. Because both parents are self-centred and self-indulgent and unwilling to end their conflict; conflict which has probably continued unabated since before their separation in April 2004, the children’s emotional needs are not being provided for by either parent. The parents have already been clearly advised about this and warned of the adverse consequences of their conflict on the children. Clear messages are contained in paragraph 25 of Moore J’s judgment and in the family report made four and a half years later without any sign being given to me of any appreciation of these messages and warnings. Both parents do not, in my assessment, have the capacity to provide for the children’s emotional needs. I fear that all three children are at risk of manifesting what I regard as a much greater level of emotional disturbance than currently appears to be the case on the relatively superficial assessment they have been given. When thy do, each parent is likely to refuse to take any responsibility for that manifestation but is highly likely to blame the other for it.
I know an insufficient amount about the children’s and parents’ life to know how their culture and traditions could be relevant. I know little of relevance about the parents’ backgrounds even though I know the father is French. I have already mentioned all I know about the children’s maturity and other characteristics. The only thing I know about their lifestyle other that what I have already mentioned is that the mother has engaged the children in and plans to continue to engage them in a lot of extracurricular activities. E appears to cope well with these. I do not accept that the boys do. I simply do not know.
On the question posed by s60CC(3)(c), it is enough to say that on the evidence it is abundantly clear that both parents do not have sufficient parental responsibility to restrain themselves from meeting their own needs when those needs conflict, as they often do, with the needs of the children. In this regard, the impression I gained from the evidence and seeing the parties is that the mother’s attitude to the children is more selfish than that of the father.
There is no evidence before me which would allow paragraphs (h), (j) and (k) to be applied. There are no facts or circumstances other than those I have referred to which are relevant and sufficiently significant to make any difference to the outcome of these proceedings. I regard Ms K’s report and her opinion as germane, important and very convincing. Each party is a very poor parent and the mother is considerably worse than the father. Because she is so self-indulgent and self-centred, I believe that if equal time is ordered her reaction will be to increase the mother’s level of conflict between the parties and increase her attempts to influence the children against the father. The consequences are likely to be worse for the children than they will be by leaving them in her care for more than half their time. I shall try to make orders which are the least likely to lead to the institution of further proceedings over the children, but I have a complete lack of confidence that I shall succeed in this aim.

The parents are in constant conflict over the decisions to be made for the children’s future, and have always been. Despite a flood of emails, they do not communicate effectively and cannot co-operate with one another in raising the children. The mother wishes to prevent the father from making the important decisions for their future. She also, it seems clear, wishes to continue working for her organisation and in doing so take trips away, especially overseas, when and for as long as it suits her, irrespective of the children’s arrangements. She expects them and the father to meet her convenience but is unwilling to sacrifice her time with the children; really an unwillingness to allow the father to have more time with the children with an unwillingness to sacrifice her travel prospects. I do not expect any order which might properly be made to alter her attitudes.
After consideration of all the material I have referred to in the light of the claims of the parties, I conclude that it would not be in the children’s best interest to spend equal time with each parent despite the fact that such an order is reasonably practicable on the basis of convenience and cost. It is not reasonably practicable in general because it is likely to increase the level of conflict between the parties and place additional stress on the children. This will probably cause the children added emotional harm. Although I have considered making an equal time order, I should not do so. I am of the view that the existing time orders including order 4 continue to be the orders which are in the children’s best interests. These provide for substantial and significant time with each parent. The time the children spend with N will be enough to maintain their good and beneficial relationship with her because it is in that regime that it has been able to develop. It is noteworthy that, despite some problems, the parties have, to a large degree, been able to keep the current residential arrangements which are convenient for the children. No other reasonably available and suitable arrangements are likely to be better kept or to improve the children’s situation or the degree of co-operation between the parties.
The mother, I find, is determined to gain as much control of the children’s arrangements as she can. She is probably not attempting to do it to benefit the children. She is trying to gain power because it will best meet her needs and wishes, especially her convenience. For this reason, it is in the best interests of the children that the orders she seeks which do not involve the actual residential regime of the children be refused.
In any event, I am not satisfied that there is any reason in the evidence to prevent the father from photographing, filming or recording the mother or children. I do not accept that he has done it to denigrate the mother. There is a substantial argument to suggest that photography or filming the children is a proper way to help prove the type of neglect they suffer. Nor can I accept that the evidence discloses any reason why the father should be restrained from coming within any distance of the mother’s home or work. It is in the children’s interest that some degree of normality is retained in the pattern of behaviour of the parents where their children are involved. For the parents to be able to drop the children off or collect them when necessary at one another’s homes and places of work is the type of normality which should be fostered for the children’s sake. In any event, to restrain the father from coming within 200m of the mother’s home and work in U Street, H would put him at risk of breaching orders when he collects the children from, delivers them to or otherwise visits H Public School. He could not, as he should be able, take the children from school to H shopping centre to buy them a drink or ice cream after school. To do so entails passing the corner of U Street, where the mother lives.
The mother seeks to define; that is, restrict, email and telephone contact between herself and the father or Ms P. The parties are incapable of the normal communication that parents engage in when the needs of their children require a decision; that is, face to face discussion or at worst discussion by telephone. If further communication is restricted between them there will be no practical way for the parties to deal with situations which need to be resolved as they arise. The children’s best interests require the Court to do what it can to encourage better communication between the parties. This can be achieved by not restricting it and thereby allowing one party to contact the other as he or she sees the need. There is no evidence to indicate the mother fears the father or that he has ever done anything to warrant her fearing him or that he has harassed her. I am quite opposed to email communication in comparison to telephone or, even better, face-to-face communication when decisions for the children are needed. Email conversations tend to be stultified by pre-conceived tactically taken stances and the lack of candour that spontaneity brings. A party’s ability to discern the real agenda of the other party is reduced, thereby inhibiting negotiations or even properly based argument. Emails certainly tend to delay any perception of the need for improvement in relations between parties. I should not encourage these by attempting to make an order of the type the mother seeks. In any event, I do not have any confidence that I could make a workable order in the face the uncertainty of the circumstances under which the parents will need to be in contact with one another to make decisions which will impact on the children’s welfare.
The mother’s claim to sole responsibility for decisions about the children’s education, musical and extracurricular activities is related to her claim that the father be required to take the children to lessons or events which fall on days when he has them. She hopes to control the choice of lessons and events. The claim is countered by the father’s claim that each parent should be able to choose the children’s extracurricular activities while the children are in that parent’s care and the claim for a restraint on the mother from enrolling the children in classes which occur when they are residing with him unless he consents to the enrolment.
Intrinsic to this dispute is the parties’ financial conflict. The father not only objects to the mother making arrangements for the children in his time with them, he objects to her claim that he should pay for or contribute to the cost of the activities she arranges if he believes such activities are not in the children’s best interests. The evidence makes it clear that the children have often been embarrassed by parental disputes over payment for school and extracurricular activities when each parent has refused to pay or has feigned refusal until the last moment. On occasions, a child’s school has paid for him or her out of consideration for the child’s welfare and embarrassment. In many instances extracurricular activities have been arranged by the mother who then attempted to make the father pay for them or contribute to the payment in excess of his child support obligations. The attempt to make the father pay was because she felt she had been unfairly dealt with in child support assessments.
I think the father is just as entitled to make decisions about the children’s activities as the mother is. In fact, I regard him as more likely to make balanced decisions about the children’s long term welfare. I do not know whether or not extracurricular activities are a benefit or a burden for the children. The mother would have the children engaged in these in the time the children spend with the father as well as in her own time with them. The father has differing attitudes to such activities. He would have them engaged in fewer such activities and would choose different ones to those that mother favours, especially for the boys. I am satisfied that the father, although influenced in his attitude to some degree by cost, believes that his plans are likely to be more beneficial to the children than the regime the mother would impose on them. I do not accept that the boys favour the mother’s plans in this respect. E is likely to support the mother’s regime for her, but I accept that the father is, as he says, highly unlikely to prevent E from undertaking the activities she prefers.
I conclude that it will best advance the children’s welfare to permit each party to determine the extracurricular activities the children undertake when the children are spending time with that party despite problems it will cause for the children. When they are living with the father, the activities he chooses will not be able to be engaged in each week. They will have to be each fortnight unless the choice is made by agreement between the parents. I do not expect the mother to agree to take the children to activities the father chooses unless she has to do so as a means of obtaining the father’s agreement to take the children to activities of her choosing. If the father consents to an activity the mother chooses, this may improve the situation for the children, but the mother should not be able to impose an out of school activity on any of the children during a period when the child is spending time with the father. If she is keen enough about a particular activity, it may encourage her to compromise by permitting activities chosen by the father to be undertaken when the children stay with her. This type of situation may teach the parties, especially the mother, to compromise. If it does, the children will benefit.
Thus, I should and shall make orders to that effect along the lines the father seeks in paragraphs 6 and 14 of his response. I should refuse the mother’s application to give her sole control of the children’s education whether academic, involving music or other extracurricular activity because, apart from the above, I think it is in the children’s best interests that they know that both parents rather than the mother have made the important decisions for their future. Refusal will also tend to force the parents to learn to communicate properly, compromise and cooperate in making and implementing decisions for the children’s long-term welfare; a situation which would be seen by the children as more normal and be more normalising for them than the alternative. The mother’s tendency toward over expectation because of her unrealistically inflated view of the children’s abilities, especially the boys, will be dampened by the father’s input. This will benefit the children.
Apart from the main dispute over the time the children are to spend with each party, the mother asks for make-up time to compensate her for time she loses as a result of “illness or personal engagement”, and for the children to spend the night before each exam with her. Presumably, this latter claim would extend to music and other extra curricular examinations. There is no evidence to satisfy me that to spend the night before an examination with the mother rather than with the father will benefit a child. I do not regard the father has being irresponsible about the children’s education, whether in music or otherwise. He is likely to be better able to exercise discretion and to be more flexible about decisions on what will benefit the children than the mother in that respect. If anything, I would order the children spend time before exams with the father because he is more sensitive to their needs and less demanding of the children, but I have not been asked by him to do that.
The mother already tends to neglect the children by her selfishness and self-indulgence. The children, according to Ms P, see her as neglectful of them. I accept that Ms P’s observation is accurate. There is no evidence that the mother might suffer any prolonged illness which will prevent her from caring for the children for a significant period. There is evidence which satisfied me that she is likely to take trips away without them, including overseas, for significant periods, as she has done in the past. If she does, the children will be reinforced in their view that the mother does not care for them properly, much to their emotional detriment. I think it is in their best interest that the mother be discouraged from continuing this practice. She seems to me to be mainly motivated in making the claim for make up time by a wish to lose no ground in the child support dispute with the father. In the circumstances, I should not make the make up time orders she seeks.
The father’s claim in paragraph 10 of his Response for an order which ensures all 3 children spend time with a parent on that parent’s birthday when his or her time with the children would not otherwise occur on that day is not reasonably practicable. There is an advantage to the children by the absence of an order for time with parents on their birthday. The parents will be subject to the exigencies of the calendar unless they are able to cooperate. This situation will tend to encourage cooperation between them. If they do not realise that it is in the children’s interests, they are likely to be acutely aware that it is in their own interests. I shall not make the order the father seeks although the mother said nothing in opposition to it.
The father seeks that the mother give him notice of school events which occur while the children are spending time with the mother. He wishes to attend them. Both parties should be able to attend all the children’s events whether at school or otherwise. Both parties should notify the other. I shall make an order to that effect because, often when children have such events, they are usually given a notice to take to their parents, but only give it to the parent to whom they go home on the day they receive it.
Paragraph 15 of the father’s Response relates to disputes over which day of the two week cycle during school term the father should have with the children when a new term begins. The problem is that when the mother has the second half of the school holidays, in the new term the parties usually quarrel over when the father should commence his regime of school term contact. If the father misses out on the first week he will face the possibility of having less than five days in the first fourteen of term if term starts on a Monday and a longer period than otherwise away from the children in any event. To avoid disputes over this, because avoidance is in the children’s best interests, I should order that the parent who does not have the children in the last week of a school vacation should have the children from the earliest day in the first fortnight of the immediately following new school term on which that parent’s time with the children could commence pursuant to order 1(a) made on 30 June 2005 by Moore J.
As I am quite satisfied that it is not in the children’s best interests that a parent deliver the children to school or the other parent in dirty, torn, damaged or otherwise inappropriate clothing and shoes, I shall make an order that each parent shall send or deliver the children to school on school days in clean undamaged and otherwise appropriate clothing and shoes, and with school bags, school books and equipment which meet their school needs on that day. If clothes or shoes any of the children were wearing when delivered to school or the other parent on a changeover day were purchased by the parent who sends or delivers them to school on that day, these things ought to be returned to the parent who purchased them by the other parent in a clean condition when that child is returned to that parent.
The father seeks defined telephone and email contact with the children for each parent when the children are with the other parent. He complains that the mother sometimes unreasonably thwarts his attempts to contact the children. I find that it is more probable than not that this complaint is well based. The mother asserts that he has on occasions pestered her and the children with his telephone calls. I do not accept that this has been established. I can discern no reason why each party should be restricted in their contact with the children by telephone text or email, but telephone calls from parents should be restricted to one each day to each child while the children are with the other parent.
The final parenting matter which is in issue is the father’s request to ensure the children always use the surname Chambers-Dubois. This is their name, or it was when Justice Moore heard and decided the parties’ conflict in mid 2005. I am satisfied that at times the mother has since deliberately attempted to have the children use the surname Chambers alone, and that it is a manifestation of her attempts to downgrade their relationship with the father. It tends to attenuate it and it is not in the children’s best interests, so I shall make an order which prevents the mother from continuing to do this.
As some of the orders I propose to make avoid the parties having equal shared parental responsibility, I so not need to apply s. 65DAA in reaching my decision on the time the children are to spend with each party but I have considered the matters which that section requires to be considered in any event.
The mother claims the father has made false statements in these proceedings so claims that I must make a costs order in her favour pursuant to s. 117AB. I have not found that he has knowingly made any false statement in proceedings under the Family Law Act, so I am not bound to make the order she seeks and shall refuse to do so. Section 117AB does not apply to child support proceedings. I note I have not accepted the father’s evidence as reflecting the whole truth in the proceedings under the Child Support (Assessment) Act, but in those I have not actually found that he has knowingly made a false statement. I have not accepted the mother’s evidence as reflecting the whole truth in both the child support and Family Law Act proceedings.
The claim under s. 118 of the Act is for dismissal of contravention proceedings brought by the father on the ground that they are vexatious. As these proceedings are not before me and I know nothing about them, I shall not do as the mother asks. These proceedings are to be distinguished from the mother’s application against the father for contempt, which I am also not deciding.
I should and shall make orders which accord with the above.

I certify that the preceding one-hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 23 December 2010.

Associate:

Date: 23 December 2010

[2010] FamCA 1178

23 December 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Remedies

Procedural Fairness

Year	Income $	Expenses $	Profit/Loss $
2002/3	52,941	90,192	-37,251
2003/4	91,603	99,577	-7,974
2004/5	3,625	47,602	-43,977
2005/6	32,265	40,706	-8,441
2006/7	131,346	96,731	+34,616
2007/8	31,095	14,204	+16,891