CHEEVER & BARRIE
[2012] FMCAfam 869
•5 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEEVER & BARRIE | [2012] FMCAfam 869 |
| FAMILY LAW – Application for final parenting orders – agreed order for sole parental responsibility – whether in children’s best interests – agreed order for children to live with mother – dispute over time spent with father – agreed order in relation to oldest child – dispute over time for youngest child with father – dispute over other orders including orders for counselling. CHILD SUPPORT – Application to set aside binding child support agreement – consideration of exceptional circumstances – evidence of hardship. |
| Family Law Act 1975 (Cth) ss.60B, 60CC(2), (3), (4), (4A), 60CG, 61C, 61DA, 65DAA, 65DAC Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) Child Support (Assessment) Act 1989 (Cth) ss.114, 121, 136(2),136(2)(a), 136(2)(b), 136(2)(d) |
| Saunders & Saunders (1976) FLC 90-078 Mulvany v Lane [2009] FamCAFC 76 Collu v Rinaldo [2010] FamCAFC 53 Goode & Goode [2006] FamCA 1346 Carlson & Ors & Bowden [2008] FamCA 1064 Bane & Bane (No.2) [2011] FamCA 790 Lennon & Lennon [2011] FamCA 571 Simpson & Hamlin (1984) FLC 91-576 |
| Applicant: | MR CHEEVER |
| Respondent: | MR BARRIE |
| File Number: | MLC 4629 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 15, 16 & 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hoult |
| Solicitors for the Applicant: | Coote Family Lawyers |
| The Respondent: | Appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms M. Agresta |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
That all previous parenting orders in relation to the children, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”) be discharged.
The mother have sole parental responsibility in respect of all major long term issues of each of the children, save that the mother shall, prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider by reference to the best interests of the children any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
Notwithstanding order (2) hereof:
(a)the mother do keep the father advised in writing at all times of the names of any school attended by the children and ensure that his name and contact details are included in any school documentation;
(b)the mother do authorise any school at which the children attend to provide to the father in respect of both children, copies of all school reports, newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to the school a copy of this order;
(c)the father is at liberty to communicate directly with the school authorities for the purpose of arranging to attend for and attend parent teacher interviews (separately to the mother) in regard to both children;
(d)the father is at liberty to attend all school functions and extra curricular activities to which parents are invited in the usual course in respect of [Y];
(e)the father is at liberty to communicate directly with school authorities from time to time to discuss all matters relevant to the welfare and educational progress of [X], save that the father shall not attend school for this purpose during school hours or whilst [X] is present, unless this is with the prior written agreement of [X] and the mother;
(f)the mother and father keep each other advised in writing of a current residential address and telephone number and advise in writing of any intended change at least 14 days prior to any change;
(g)the mother advise the father in writing of details of all medical and allied health professionals including counsellors, psychologists and psychiatrists who may be providing assistance or treatment to the children or either of them and provide an ongoing authority to these professionals to provide information to the father about all matters relevant to the health and welfare of the children upon a request by him for such information;
(h)the father is at liberty to communicate directly with the children’s medical professionals for the purpose of obtaining information as to matters relevant to their health and welfare including information about any treatment recommended or undertaken or medication prescribed;
(i)the mother advise the father as soon as practicable in the event that either child is prescribed medication on an ongoing basis for a mental health illness and prior to the child commencing such medication, advise the father of the name and contact details of the doctor prescribing such medication and the reason for the medication and the father is at liberty thereafter to discuss this issue with the said doctor;
(j)the mother do advise the father as soon as practicable in the event that the child, [X] suffers a significant illness or injury or requires hospitalisation; and
(k)the mother and father advise each other immediately in the event the child, [Y] suffers a significant illness or injury or requires hospitalisation whilst she is in their respective care.
The children live with the mother.
The child [Y] spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school or 3.30 pm (if it is a non school day) until the commencement of school on Monday (or 9.00 am if it is a non school day);
(b)from 5.00 pm on Christmas Day until 5.00 pm on Boxing day in 2012 and each alternate year thereafter;
(c)from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2013 and each alternate year thereafter;
(d)for two hours on the child’s birthday and the father’s birthday as agreed and failing agreement from 3.30 pm until 5.30 pm on a weekday and from 10.00 am until 12.00 noon in a weekend;
(e)from 9.00 am until 5.00 pm on Father’s Day each year;
(f)by telephone each Wednesday between 6.30 pm and 7.30 pm with the father to initiate the telephone call; and
(g)by way of cards, gifts and letters.
That the child [X] spend time and communicate with the father:
(a)as agreed between the child and the father from time to time; and
(b)by way of cards, gifts and letters at all reasonable times.
For the purposes of order 5 herein changeover take place at the children’s school during school term and the [D] Library on all other occasions, or as may be agreed between the parties.
The mother and father do all acts and things necessary to enable the children to engage in therapeutic counselling on an ongoing basis with a psychologist or counsellor nominated by the Independent Children’s Lawyer such counselling to assist the children to deal with the issues raised for them as a result of the parental separation and ongoing parental conflict and its effect on their relationships with their parents and particularly their father.
To facilitate the operation of order 8 hereof:
(a)the mother and father share equally the costs of the counselling;
(b)the mother will have input in the counselling (at the discretion of the counsellor) and attend as and when directed by the counsellor and make the children available to attend as and when directed by the counsellor;
(c)the father shall have input into the counselling at the discretion of the counsellor and attend as and when directed by the counsellor;
(d)the appointment of the Independent Children’s Lawyer shall be discharged after 6 months from the date of this order to allow her to:
(i)nominate the counsellor and to assist to set the process in motion;
(ii)to explain the operation of these orders with the children; and
(iii)to oversee the parties in general for a period of 6 months;
(e)the Independent Children’s Lawyer shall be at liberty to provide to the counsellor copies of:
(i)this Order and judgment;
(ii)the Family report prepared by Ms T dated 20 March 2012;
(iii)the family report prepared by Mr H dated 28 June 2008; and
(iv)the psychiatric assessments of Dr E dated 4 April 2008 of both the mother and the father.
(f)the Independent Children’s Lawyer shall be at liberty to liaise with the counsellor as to the parties compliance with this order until the date of her discharge;
(g)in the event that the therapeutic counselling ceases as a result of the unilateral decision of either the mother or father, as a result of non compliance with this order by either the mother or the father or because in the opinion of the counsellor the therapeutic process is unable or unlikely to assist the family, the counsellor is at liberty upon a request by any party (including the Independent Children’s Lawyer if applicable) to prepare a report as to the counselling; and
(h)the Independent Children’s Lawyer explain the operation of these orders to the children within 14 days herein.
That the parties, their servants and/or agents be and are hereby restrained from:
(a)verbally abusing, harassing, belittling or denigrating the other parent, their family and or members of their respective households, to and/or within the hearing of the children or either of them.
(b)discussing these proceedings within the hearing of the children and/or knowingly allowing the children or either of them access to documents filed in this matter.
That time spent pursuant to order 5(a) herein is suspended in January 2013 so that [Y] can attend the jamboree.
Any application for costs along with any affidavit and written submissions be filed and served within 14 days herein.
Any response to such application along with any affidavit and written submissions be filed and served within 14 days thereafter.
Unless requested otherwise any application for costs will be dealt with on the papers.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all extant applications including the mother’s application to set aside the Child Support Agreement are otherwise dismissed and removed from the Pending Cases List.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
IT IS NOTED that publication of this judgment under the pseudonym Cheever & Barrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4629 of 2008
| MR CHEEVER |
Applicant
And
| MR BARRIE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case about [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”). For the sake of these reasons I will where necessary refer to [X] and [Y] as the children. The applicant, Ms Cheever (“the mother”) is the children’s mother. The respondent, Mr Barrie (“the father”) is the children’s father.
The mother and the father are in dispute over what parenting orders under the Family Law Act 1975 (“the Act”) should be made for the children. There is also a dispute over the mother’s application under the Child Support (Assessment) Act 1989 to set aside a child support agreement made in 2008 (“the Agreement”).
In these reasons I will endeavour to explain why I have made the orders set out at the beginning of this judgment.
Where in these reasons there is a statement of fact, those statements are, unless otherwise specified, findings of fact.
The mother is 50 years of age and lives in [D]. The father is
54 years of age and lives in [suburb omitted].
The parties married [in] 1999. The eldest child, [X] is 12 years of age and the youngest child [Y] is 10 years old.
The parties separated in 2006. Proceedings were commenced in the Family Court of Australia. On 6 August 2008, when both parties were represented, there were final parenting orders for the children made by consent (“the 2008 Orders”). Those orders provided for the parties to have equal shared parental responsibility for the children and for the children to spend slightly more than 50% of their time with the mother and slightly less than 50% of their time with the father.
In 2008 there were also final property orders made by consent and the parties entered into a binding child support agreement. It appears the 2008 Orders were “largely adhered to” until events (which neither party sought to explain) in the middle of 2010 saw the eldest child ([X]) cease spending time with the father.
The mother commenced these proceedings by application for parenting orders filed on 11 November 2010. In that application the mother sought inter alia orders for the parties to have equal shared parental responsibility, the children to live with the mother and spend time with the father each alternate weekend. The mother’s application was met by a response from the father filed on 16 December 2010. The father’s response sought inter alia orders that he have sole parental responsibility, the children live with him and spend time with the mother at a contact centre. The proceedings came before this Court for the first time on 20 December 2010. Both parties were represented.
There were interim parenting orders made by consent and the matter was adjourned to 14 June 2011. Those interim parenting orders provided inter alia for the children to live with the mother and spend time with the father. There were also orders for the parties and the children to attend reportable counselling.
However it now appears the parties’ situation became more problematic and as will become clear presently the parties have since spent quite a lot of time pursuing perceived rights and wrongs through different courts.
Proceedings were commenced by the mother for an intervention order against the father in the Victorian Magistrates’ Court. After a number of interim intervention orders, the mother’s application for a final intervention order was dismissed.
The intervention order proceedings and orders made in the Victorian Magistrates’ Court, as a part of those proceedings, necessitated a number of adjournments of these proceedings. The father, who by that time was unrepresented, filed a number of contravention applications that were subsequently discontinued. However during the course of these proceedings there were a number of interim consent orders made. On 5 April 2012 the matter was fixed for final hearing on
15 August 2012.
[X] has not spent time with the father since 2010 and continues to refuse to see and communicate with him. However (save for some difficulties in the few weeks leading up to the final hearing), [Y] has been seeing the father each alternate weekend.
The mother gives her occupation as a [omitted] and the father gives his occupation as an [omitted].
It appears neither the mother nor the father work full time. The mother wants to pursue further education and the father has a degenerative eye condition. Both children are currently attending [D] School and are involved in [activities omitted]. Before the final hearing the mother told the Court she had received notice [X] had been accepted into [school omitted].
The 2008 Orders
The 2008 Orders made by consent in the Family Court provided:
“1.That all previous parenting orders in relation to the children [X] born [in] 2000 and [Y] born [in] 2001 be discharged.
2.That the husband and wife retain equal parental responsibility for the said children.
3.That save for paragraph 5 hereof the children shall live with the husband as follows:
(a)each alternate weekend from Friday at the conclusion of school until the commencement of school on Tuesday until the end of October 2008;
(b)thereafter each alternate weekend from Friday at the conclusion of school until the commencement of school Wednesday until January 2009;
(c)thereafter each alternate week from the conclusion of school Friday until the commencement of school Thursday.
4.That save for paragraph 5 hereof the children otherwise live with the wife.
5.That paragraphs 3 and 4 of these orders be suspended and the children live with the parent whose care they are not in as follows:
(a)all periods of care be suspended from 5:00 pm on 24 December until 5:00 pm 26 December in each year and the children live with the husband from 5:00 pm 24 December until 5:00 pm 25 December in even numbered years and from 5:00 pm 25 December until 5:00 pm 26 December in odd numbered years and otherwise live with the wife;
(b)over the school holiday period and Christmas school holiday period the children live with each parent for one half of each period to be the first half in even numbered years with the husband and the second half in off numbered years with the husband and otherwise with the wife unless agreed;
(c)each Father’s Day should the children be living with the wife from 10:00 am Saturday until 6:30 pm Sunday;
(d)each Mother’s Day should the children be living with the husband from 10:00 am Sunday until 6:30 pm Sunday;
(e)for a period of 2 hours on each of the children’s birthdays at such times as agreed;
(f)for a period of 3 hours on each of the parent’s birthdays when that parent is celebrating the birthday.
6.That there be liberal telephone contact.
7.Where changeover does not occur at the children’s schools the wife deliver the children to the husband’s residence at the commencement of the husband’s care period and the husband deliver the children to the wife’s residence at the commencement of the wife’s care period.
8.That the parties exchange a communication book to inform each other as to the children’s progress on the week that the children are in that parties’ respective care.
9.That each parent shall immediately notify the other in the event of any serious illness, medical emergency or prior to any dental or hospital treatment or hospitalisation of either of the said children whilst the children are in their respective care.
10.That each parent keep the other informed at all times of heir current residential address and telephone contact details and advise the other parent of any changes to such details within 48 hours of such change.
11.That the order for the appointment of the Independent Children’s Lawyer be discharged.
12.That the mother attend a post separation parenting course.
13.That each party advise the other in writing 14 days prior to undertaking any interstate travel with the children of:
(a)the full itinerary;
(b)contact landline telephone numbers;
(c)where the children will be staying during any travel period.
14. S.65DA(2) and 62B.”
Procedural background
As noted earlier these proceedings were commenced in late 2010 by the mother. On 20 December 2010, (at the first Court) date there were interim consent orders made, which were:
“1.That the orders contained in paragraphs 3, 4 and 5 of the orders of the Family Court at Melbourne on the 6th August 2008 be suspended from 23rd December 2010.
2.The orders contained in paragraphs 2, 6, 7, 8, 9 and 10 made on 6th August 2008 remain in full force and effect.
3.The children, [X] born [in] 2000 and [Y] born [in] 2001 (“the children”) live with the husband as follows:
(a)from 5.00 pm 24th December until 5.00 pm 26th December 2010;
(b)from 3.30 pm Friday 31st December until 5.30 pm the following Friday and each alternate week thereafter during the long summer holiday period (or part week if the last week before school recommences is less than 7 days).
(c)during school term period from 3.30 pm Friday until the commencement of school the following Monday (or Tuesday if the be a public holiday) in alternate weeks with the weekend to continue in the alternate Friday rotation as commenced during the long summer school vacation.
(d)during the 1st, 2nd and 3rd term school vacation periods, from 3.30 pm Friday to the following Friday at 3.30 pm in the continuing rotation of alternate Fridays as referred in (b) and (c) hereof and if the third weekend of the holiday period be part of the said rotation then from 3.30 pm that Friday until school recommences.
4.That the children otherwise live with the wife.
5.That notwithstanding orders (3) and (4) hereof the children shall:
(a)be with the wife from 10.00 am until 6.30 pm on Mother’s Day;
(b)be with the husband from 10.00 am until 6.30 pm on Father’s Day;
(c)be with their parent on that parent’s birthday for 3 hours and failing agreement from 3.30 pm until 6.30 pm;
(d)be with the parent they otherwise would not have been with pursuant to these orders on each of the children’s birthdays for 2 hours and failing agreement from 3.30 pm until 5.30 pm.
6.That neither parent take the children or either of them for any counselling or non-urgent medical treatment without the consent in writing of the other parent or court order.
7.That the parties do all acts and things necessary to sign all documents to enable them and the children to attend Mr P for the purpose of reportable therapeutic counselling and/or the treatment as recommended by Mr P and the parties each pay one half of the costs incurred.
8.That the parties each provide to Mr P copies of the material filed by them in these current proceedings and copies of expert reports previously obtained in the Family Court proceedings (save for the reports of Mr H).
9.Usual ss.65DA(2) and 62B.
10.That all extant applications be adjourned for mention 14th June 2011 at 10.00am in the Federal Magistrates Court in Dandenong and in the event that the therapeutic counselling has not completed, the parties shall jointly request the mention to be adjourned to a later appropriate date.
…”
As contemplated in those orders the proceedings were adjourned to
14 June 2011 and there was to be reportable counselling. Both parties have since blamed the other for this not progressing.
Before these proceedings returned to this Court the mother made an application for an intervention order to the Victorian Magistrates’ Court on 2 June 2011.
In the mother’s application for that intervention order it was alleged:
“The Respondent is my ex-husband. I have known him for
13 years and we have been separated for 5 years. We have
2 children together, which are the subject of a family law order. The respondent has been emotionally and psychologically abusive towards myself and our children. His behaviour has escalated recently, because I have sought sole custody of our children. Most recently on 22/04/2011 the respondent thought our child was going to his house, which was not the case. He contacted my agent and was ranting and raving and irrational. He also contacted me and I turned off my phone. He then contacted police who then contacted me. The police had been concerned for my safety as he had also ranted and raved to the police officer. Our children are fearful of him and have recently received counselling as a result. The respondent drives by our house frequently and this makes my eldest daughter frightened. The respondent has threatened the children saying “if you don’t spend time with me, you will never see your mother again.” The children tell me that their father yells at them, that he doesn’t feed them much. In 2005, the respondent began to use violent verbal language towards me and use threatening behaviour in front of the children. He also became financially abusive as he withheld financial information from me. In 2006, the respondent was ordered by the court to leave the home. He became angry and intoxicated and smashed up his bedroom. The police took out an intervention order on my behalf as they feared for my safety. I am seeking this order for the protection of myself and children.”
An interim intervention order was made against the father on 2 June 2011 which named the mother and the children as protected persons. That order provided:
“The Court orders that the respondent must not:
1.Commit family violence against the protected person(s).
Note:The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member of another person. It also includes behaviour that causes a child to hear or witness or otherwise be exposed to the effect of these behaviour.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Follow the protected person(s) or keep him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with the protected person by any means.
6.Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of [address omitted], [D] or any other place the protected person lives, works or attends school.
8.Get another person to do anything he/she must not do under this order.
9.THE COURT ALSO ORDERS:
The respondent must arrange to return jointly owned property within 2 days of the service of this order.
10.THE COURT ALSO ORDERS:
Until further order, any firearms held by the respondent is suspended. The respondent must hand any firearms in his/her possession to police immediately.
11.THE COURT ALSO ORDERS:
Until further order, any weapons approval or exemption held by the respondent is suspended. The respondent must hand any weapons in his/her possession to police immediately.
12.At the time of making this interim intervention order, the Court has also made an order under s.68R of the Family Law Act 1975. The Court has ordered that the parenting order made on 20/12/2012 is suspended.
This order will end when the interim intervention order ends or 21 days from the date when the interim intervention order was made (whichever is the earlier).
Note: Victorian police cannot enforce the contravention of a Family Law Act order.
13.If the respondent does not commit family violence while doing so, he/she will not contravene this order by:
(a)doing anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(b) negotiating changes to child arrangements by letter, email or text message; or
(c) communicating with a protected person through a lawyer or mediator; or
(d)arranging and/or participating in counselling or mediation; or
(e) going to the home of a protected person, in the company of a police officer, to collect personal property.
This order will last until further order.
Notations:
The respondent was not served with a copy of the Application and Summons.
The respondent was not present at the hearing.
The respondent did not agree to this order being made.”(emphasis added)
As noted earlier, these proceedings were to return to this Court on 14 June 2011. On that occasion the mother was represented and the father appeared in person. Given the above mentioned order made in the Victorian Magistrates’ Court, and that the intervention order proceedings were listed for a contested hearing on 27 June 2011 in that court, these proceedings were adjourned to 3 August 2011.
On 27 June 2011 the mother’s intervention order proceedings returned to the Victorian Magistrates’ Court. Both parties were represented and the matter was listed for a contested hearing on 29 August 2011.
The following order (which also named the mother and the children as affected family members) issued against the father as a result of the hearing on 27 June 2011:
“The Court orders that the respondent must not:
1.Commit family violence against the protected person(s).
Note:The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member of another person. It also includes behaviour that causes a child to hear or witness or otherwise be exposed to the effect of these behaviour.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Follow the protected person(s) or keep him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with the protected person by any means.
6.Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of [address omitted], [D] or any other place the protected person lives, works or attends school.
8.Get another person to do anything he/she must not do under this order.
9.(a) live in the same place as: or
(b) spend time with or have contact with; or
(c) communicate with-
any child protected by this order.
10. THE COURT ALSO ORDERS:
The respondent must arrange to return personal property belonging to the protected person(s) within 2 days of the service of this order.
11. THE COURT ALSO ORDERS:
The respondent must arrange to return jointly owned property within 2 days of the service of this order.
12.THE COURT ALSO ORDERS:
Until further order, any firearms authority held by the respondent is suspended. The respondent must hand any firearms in his or/her possession to police immediately.
13. THE COURT ALSO ORDERS:
Until further order, any weapons approval held by the respondent is suspended. The respondent must hand any weapons in his/her possession to police immediately.
14.At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The court has ordered that the parenting order made on 20/12/2010 is suspended.
This order will end when the interim intervention order ends or 21 days from the date when the interim intervention order was made (whichever is the earlier).
Note: Victorian police cannot enforce the contravention of a Family Law Act order.
15.If the respondent does not commit family violence while doing so, he/she will not contravene this order by:
(a)doing anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(b)negotiating changes to child arrangements by letter, email or text message; or
(c)communicating with a protected person through a lawyer or mediator; or
(d)arranging and/or participating in counselling or mediation; or
(e)going to the home of a protected person, in the company of a police officer, to collect personal property.
This intervention order expires on 29/8/2011, or until a final order is served on the respondent, unless extended or varied prior to that time.
THIS IS AN INTERIM INTERVENTION ORDER
Notations:
The respondent was served with a copy of the Application and Summons.
The respondent was present at the hearing.
The respondent agreed to this Order being made.” (emphasis added)
The order that issued from the Victorian Magistrates’ Court as a result of the hearing on 27 June 2011 appears at odds with the transcript of and the decision made at that hearing.[1] Whilst it is not in dispute that the order set out above was the order that issued as a result of that hearing a transcript of that hearing makes clear an extension of the s.68R order made on 2 June 2011 was refused on 27 June 2011.[2] Those proceedings were adjourned to 29 August 2011 for a contested hearing on whether there should be a final intervention order.
[1] see transcript exhibit A to the affidavit of Mr Barrie filed 14 February 2012
[2] Ibid
On 21 July 2011 the father filed a contravention application with this Court that was given a first return date of 6 September 2011.
On 3 August 2011 when the matter returned to this Court the mother was represented and the father appeared in person. The mother through her Counsel tendered as an exhibit the orders that issued from the Victorian Magistrates Court on 27 June 2011. Neither party drew to this Court’s attention the matters referred to in paragraph 25 above.
Again and given the above mentioned order made in the Victorian Magistrates’ Court, and that the intervention order proceedings were listed for a contested hearing on 29 August 2011 in that court, these proceedings were adjourned to 9 September 2011.
On 11 August 2011 the father’s contravention application referred to in paragraph 26 above was relisted to 9 September 2011.
On 29 August 2011 the mother’s application for an intervention order was the subject of a contested hearing in the Victorian Magistrates’ Court.
At the conclusion of that hearing those proceedings were adjourned to
26 September 2011.These proceedings returned to this Court on 9 September 2011.
The mother was represented and the father appeared in person. Interim consent orders including orders for the father to spend time with [Y] were made along with an order for the appointment of an Independent Children’s Lawyer and the matter was adjourned to 20 December 2011.On 26 September 2011 the Victorian Magistrates’ Court refused the mother’s application for an intervention order and dismissed the proceedings.[3]
[3] Ibid
The father filed 2 further contravention applications with this Court on 19 October 2011 and 14 December 2011.
The parties returned to Court on 20 December 2011. The mother was represented, the father appeared in person and Counsel appeared for the Independent Children’s Lawyer. There were interim consent orders made, there was an order made for the preparation of a family report and the father was given leave to discontinue his contravention applications.
The matter returned to Court on 5 April 2012 and directions were made for the final hearing to proceed on 15 August 2012.
The final hearing
The final hearing occurred over the course of 15, 16 and 17 August 2012. Mr Hoult of Counsel appeared on behalf of the mother, the father appeared in person and Ms Agresta of Counsel appeared on behalf of the Independent Children’s Lawyer.
As the father was self represented I endeavored to ensure that he had a proper understanding of how the final hearing would be conducted and of his rights in conducting his own case.[4]
[4] see Re F: Litigants in Person Guidelines [2001] FamCA 348
I am satisfied that the father understood all matters in issue. He was positive in the way he made his submissions to the Court and asked questions of the mother and the family consultant during the course of their evidence. The father conducted himself appropriately at all times.
Material relied upon
At the commencement of the hearing Counsel for the mother told the Court his client relied on her:
a)amended initiating application filed on 18 July 2012;
b)trial affidavit of Ms Cheever filed 18 July 2012;
c)financial statement filed 18 July 2012; and
d)outline of case filed 13 August 2012.
The father told the Court that he relied on his:
a)affidavit filed on 16 December 2010;
b)affidavit filed on 31 May 2011;
c)affidavit filed on 8 June 2011;
d)affidavit filed on 21 July 2011;
e)affidavit filed on 2 August 2011;
f)affidavit filed on 2 September 2011;
g)affidavit filed on 30 November 2011;
h)affidavit 14 December 2011;
i)affidavit filed on 14 February 2012;
j)affidavit filed on 29 March 2012;
k)affidavit filed on 1 August 2012; and
l)Outline of case filed on 1 August 2012.
Counsel for the Independent Children’s Lawyer told the Court her instructor relied on the:
a)family report dated 12 March 2012 (“the Report”);
The Court has also had regard to a number of exhibits that were tendered in evidence. Those exhibits were:
·A1 – a note from [Y] to the mother;
·A2 – a summons from the Victorian Magistrates’ Court;
·A3 – an application for summons for an intervention order, an interim intervention order and information for an application for an intervention order all in the Victorian Magistrates Court;
·A4 – the mother’s proposed orders;
·R1 – a facebook page notice in the [D] School newsletter;
·R2 – the father’s proposed orders;
·ICL1 – the minutes of final orders sought by the Independent Children’s Lawyer.
Orders sought by the parties
The mother
In her initiating application filed in November 2010 the mother sought inter alia that the parties have equal shared parental responsibility, that the children live with her and spend time with the father each alternate weekend. In her amended application filed 18 July 2012, the mother sought the following final orders:
“Children’s orders
1.The children of the marriage namely [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”) live with the mother.
2.The mother have sole parental responsibility for [X] for the long term care, welfare and development.
3.The parties have equal shared parental responsibility for [Y] in relation to her long term care, welfare and development.
4.The child [X] spends time and communicates with the father solely at her initiation.
5.The father spend time with [Y] in accordance with the following:
(a)each alternate weekend form 5 pm Friday to 5 pm Sunday (and with such arrangements to continue through each Victorian school term holiday period) and suspended during the Christmas period each year from 5 pm on Christmas Eve to 5 pm on Boxing Day and from 9 am to 5 pm on Mother’s Day and on the Mother’s birthday if it falls within a period during which [Y] is in the father’s care.
(b)commencing in 2012 for Christmas Eve from 5 pm to Christmas Day 5 pm and in each alternate year thereafter and in 2013 for Christmas Day from 5 pm to Boxing Day 5 pm and in each alternate year thereafter;
(c)for a period of 2 hours on her birthday, the father’s birthday and father’s day at times to be agreed and failing agreement from 10 am to 12.00 noon.
(d)by telephone at [Y]’s instigation; and
(e)such other or further times as may be agreed between the parties.
6.The father shall facilitate [Y]’s attendance at [activity omitted], birthday or any such other school related or social events as may fall during his time spent with her.
7.The parties shall each provide notice of not less than 4 weeks of any intended interstate travel during such times as the children are spending with the travelling parent.
8.The mother shall authorise the school to provide the father with copies of all school reports, newsletters and relevant information in relation to the children (including [X]) and that the father be permitted to attend all school functions that parents are ordinarily able to attend in respect of [Y].
9.The parties shall advise the other parent of any medical emergencies in respect of the children whilst in their care.
10.The parties shall each notify the other parent of any changes to their place of residence or telephone number within 48 hours of such change.
11.The parties by themselves, agents and servants be restrained from uploading any images or photographs of the children on Facebook or on the internet.
Child support orders
12.Pursuant to section 136 of the Child Support (Assessment) Act 1989 the Binding Child Support Agreement executed by the parties on 6 August 2008 (copy attached) be set aside.
13.The father pays to the mother a weekly sum by way of periodic child support for [X] and [Y], such sum to be particularised by the mother upon disclosure of the father’s income from all resources and his present financial circumstances.
14.Such further or other orders as this Honourable Court deems appropriate.”
However, during the mother’s evidence before the Court the orders she sought changed again from those sought in her amended application. At the conclusion of the evidence the Court was told the final orders sought by the mother were:
“1.That all previous parenting orders in relation to the children of the marriage namely [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”) be discharged.
2.The mother have sole parental responsibility for [X] and [Y] for their long term care, welfare and development, save that the mother shall prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation to her intended decision;
(c)consider by reference to the best interests of the children any such response by the father prior to making her final decision;
(d)advise the father in writing as soon as reasonably practicable of her final decision.
3.The children to live with the Mother.
4.The children [X] and [Y] spend time and communicate with the father solely at their initiation.
5.In the alternative to paragraph (4) above:
(a)[X] spends time and communicate with the father solely at her initiation;
(b)[Y] spends time and communicate with the father as follows:
(i) each alternate weekend from 5 pm Friday to 8 pm Sunday (and with such arrangement to continue through each Victorian school term holiday period) and suspended during the Christmas period each year from 5 pm on Christmas Eve to 5 pm on Boxing Day, and from 9 am to 5 pm Mother’s Day and on the mother’s birthday if it falls within a period during which [Y] is in the father’s care;
(ii) commencing in 2012 for Christmas Eve from 5 pm Christmas Day 5 pm in each alternate year thereafter and in 2013 for Christmas Day from 5 pm to Boxing Day 5 pm and in each alternate year thereafter;
(iii) for a period of 2 hours on her birthday, the Father’s birthday and Father’s Day at times to be agreed and failing agreement from 10:00 to 12:00 noon.
(iv) By telephone at [Y]’s instigation; and
(v) Such other or further times as may be agreed between [Y] and the father.
(c)The father shall facilitate [Y]’s attendance at [activity omitted], birthday or any such other school related or social event as may fall during his time spent with her.
6.The parties shall each provide notice of not less than 4 weeks of any intended interstate travel during such times as the children are spending with the travelling parent.
7.The mother shall authorise the school to provide the father with copes of all school reports, newsletters and relevant information in relation to the children (including [X]).
8.The parties shall advise the other parent of any medical emergencies in respect of the children whilst in their care.
9.The parties shall each notify the other parent of any changes to their place of residence or telephone number within 48 hours of such change.
10.The parties by themselves, agents and servants be restrained from uploading any images or photographs of the children on Facebook or on the internet.
11.Pursuant to section 136 of the Child Support (Assessment) Act 1989 the Binding Child Support Agreement executed by the parties on 6 August 2008 be set aside.”[5]
[5] see exhibit “A4”
The father
The father had filed a response on 16 December 2010, an amended response on 1 August 2012 and a further amended response on
10 August 2012. In his further amended response the father sought the following orders:
“1.That the applicant’s amended initiating application filed
18 July 2012 be dismissed.
2.[paragraph 2 deleted]
3.[paragraph 3 deleted]
4.[paragraph 4 deleted]
5.That the applicant pay the respondents costs of and incidental to these proceedings.
6.That the applicant’s application for setting aside the Binding Child Support Agreement be dismissed.
7.See attached children’s orders.
Children’s Orders sought by Respondent
1.That all previous parenting orders in relation to the children [X] born [in] 2000 and [Y] born [in] 2001 (“the children”) be discharged.
2.That the care arrangements for [X] be reserved. (Note: Ms Cheever has so far refused to provide the Court with the opportunity to determine of therapeutic counselling would ameliorate [X]’s attitude to Mr Barrie’s care.)
3.That the parties have equal shared parental responsibility for [X].
4.That the husband have full parental responsibility for [Y].
5.That [Y] live with the wife as follows:
(a) during the school term:
(i) from the end of school Friday until the commencement of school the following Monday (or Tuesday if the Monday be a public holiday) in alternate weeks with the weekend to continue in the alternate Friday rotation commencing
17 August 2012.
(ii) from the end of school each Wednesday until the commencement of school Thursday commencing 22 August 2012.
(b)during the school vacation periods, from 5.00 pm Friday to the following Friday at 5.00 pm in the continuing rotation of alternate Fridays as referred to in (a) hereof and if the last weekend of the holiday period be part of the said rotation then from 5.00 pm that Friday until school recommences. Commencing Friday 28 September 2010.
6.That [Y] otherwise live with the husband.
7.Notwithstanding orders 5 and 6 hereof the children shall:
(a)be with the wife from 10.00 am until 6.30 pm on Father’s Day.
(b)be with the husband from 10.00 am until 6.30 pm on Father’s Day.
(c)be with their parent on that parent’s birthday for 3 hours and failing agreement from 3.30 pm until 6.30 pm.
(d)be with the parent they otherwise would not have been with pursuant to these orders on each of the children’s birthdays for 2 hours and failing agreement from 3.30 pm until 5.30 pm.
(e) all periods of care be suspended from 5.00 pm 24th December until 5.00 pm 26th December in each year and the children live with the husband from 5.00 pm 24th December until 5.00 pm 25 December in off numbered years and from 5.00 pm 25th December until 26th December in even numbered years and otherwise live with the wife.
(f)all periods of care be suspended from 10.00 am
1 January 2013 until 10.00 am 24 January 2013. [Y] will live with the wife from 10.00 am 1 January 2013 until 10.00 am 15 January 2013. [Y] will live with the husband from 10.00 am 15 January 2013 until 10.00 am 24 January 2013.
8.When the children are attending school, changeovers occur at the children’s school. Where changeover does not occur at the children’s school the wife deliver the children to the husband’s residence at the commencement of the husband’s care period and the husband deliver the children to the wife’s residence at the commencement of the wife’s care period.
9.That there be liberal telephone contact.
10.That the parties authorise the school to provide both parents with copies of all school reports, newsletters and relevant information in relation to both children.
11.That both parents be permitted to attend all school functions that parents are ordinarily able to attend in relation to both children.
12.That each parent shall immediately notify the other in the event of any serious illness, medical emergency or prior to any counselling, dental, non urgent medical or hospital treatment or hospitalisation of either of the said children whilst the children are in their respective care.
13.That neither parent take the children or either of them for psychiatric consultation or psychiatric treatment or allow the children to be prescribed or administered or take any mind altering, mood altering, anti-anxiety, anti psychotic or sleeping medication without the consent in writing of the other parent. This does not include anaesthetics required for surgery.
14.That each parent keep the other informed at all times of their current residential address and telephone contact details and advise the other parent of any changes to such derails within 48 hours of such change.
15.That Ms Cheever attends a post-separation parenting course and any other counselling or courses the court considers necessary.”
However at the conclusion of the evidence and in his final submissions, the father told the Court the orders he sought had changed again and he now sought the following final orders:
“1.Either:
(a)the application for Binding Child Support Agreement be set aside be dismissed; or
(b)if the Binding Child Support Agreement is to be set aside then applicant pay respondent $200,000.
2.That all previous parenting orders in relation to the children [X] born [in] 2000 and [Y] born [in] 2011 be discharged.
3.That the mother have sole parental responsibility in respect of all major long term issues in respect of each of the children, save that the mother shall prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision tended to be made.
(b)seek the father’s written response in relation thereto.
(c)consider by reference to the best interest of the children of any such response or to making any such decision.
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
4.That notwithstanding order 3 hereof:
(a)The mother do keep the father advised in writing at all times of the names of any school attended by the children and ensure that his name and contact details are included in any school documentation.
(b)The mother do authorise any school at which the children attend to provide to the father in which of both children, copies of all school reports newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to the school a copy of this order.
(c)The father is at liberty communicate directly with the school authorities for the purpose of arranging to attend for and attend for parent teacher interviews (separately to the mother) in regard to both the children or either child.
(d)The father is at liberty to attend all school functions to which parents are invited in the usual course in respect to both children or either child.
(e)The father is at liberty to communicate directly with the school authorise from time to time to discuss all matters relevant to the welfare and educational progress of [X] [rest of paragraph deleted].
(f)The mother and father do keep each other advised in writing of a current residential address and telephone number and advise in writing of any intended change at least 14 days prior to any change.
(g)The mother do advise the father in writing of details of all medical and allied health professionals providing assistance or treatment to the children or either of them and provide an ongoing authority to these professionals to provide information to the father about matters relevant to the health and welfare of the children upon a request by him for such information.
(h)The father is at liberty to communicate directly with the children’s medical professionals for the purpose of being advised as to matters relevant to their health and welfare.
(i)The mother do advise the father as soon as reasonable practical if [X] suffers a significant illness or injury or requires hospitalisation.
(j)The mother and father advise each other as soon as reasonably practicable in the event that the child [Y] suffers a significant illness or injury or is hospitalised whilst she is in their respective care.
5.That the children live with the mother.
6.That the child [Y] spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school or 3.30pm if it is a non school day until the commencement of school on Monday or 9.00 am if it is a non school day in sync with the current weekend arrangements commencing on Friday 7 September 2012.
(b)From 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day in 2012 and each alternate year.
(c)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day in 2013 and each alternate year.
(d)For two hours on the child’s birthday and father’s birthday as agreed and failing agreement from 3.30 pm until 5.30 pm on a weekday and from 10.00 am until 12.00 noon on a weekend.
(e)From 9.00 am until 5.00 pm on Father’s day each year.
(f)By telephone each Wednesday between 6.30 pm and 7.00 pm with the father to initiate the telephone call.
(g)By way of cards, gifts and letter.
(h)From 10.00 am Tuesday 15 January 2013 to Thursday 24 January 2013.
For up to 14 consecutive days once per calendar year in the school holidays or Christmas holidays with the dates and times to be nominated by the father and 6 months notice given to the mother.
7.That the child [X] spend time and communicate with the father.
(a)as agreed between the child and the father from time to time.
(b)by way of card, gift and letters at all reasonable times.
8.Changeover take place at the child’s school during school term.
9.Where changeover does not occur at the child’s school:
(a)while both parties remain at their current residential addresses the wife deliver the children to the husband’s residence at the commencement of the husband’s care period and the husband deliver the children to the wife’s residence at the commencement of the wife’s care period.
(b)if either party changes their current residential address then changeover occur at the [D] Library.
10. That the both children obtain passports:
(a)that the mother do all things necessary to obtain the passports within 60 days from the date of these orders.
(b)that the mother keep the father informed of this process and all matters relating to the children’s passports
(c)that the mother do all things necessary to renew each passport before it expires.
(d)that the mother do all things necessary to facilitate the father obtaining any visas or travel documents the children require.
(e)that each parent pay half the cost of obtaining and renewing the passports.
(f)that the children’s passports be held in trust by the mother.
(g)that the passports be made available to the father within 14 days of his requesting it in writing.
(h)that the passport be returned to the mother within 14 days after it is no longer required.
11.That the mother do all acts and things necessary to enable the children to engage in counselling on an ongoing basis with a psychologist or counsellor nominated by the Independent Children’s Lawyer such counselling to assist the children to deal with the issues raise for them as a result of the parental separation and ongoing parental conflict and its effect on their relationships with their parents and particularly their father.”[6]
[6] See Exhibit R2
Orders sought by the Independent Children’s Lawyer
The initial position of the Independent Children’s Lawyer was that the exact terms of the final orders she believed were in the children’s best interests (and were necessary to resolve the issues identified by the parties) should be reserved until after the evidence was heard.
At the conclusion of the hearing the Court was told the final parenting orders the Independent Children’s Lawyer sought were:
“1.That all previous parenting orders in relation to the children [X] born [in] 2000 and [Y] born [in] 2001 be discharged.
2.That the mother have sole parental responsibility in respect of all major long term issues in respect of each of the children, save that the mother shall prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider by reference to the best interests of the children any such response prior to making any such decision.
(d)advise the father in writing as soon as reasonably practicable for her ultimate decision.
3.That notwithstanding order 2 hereof:
(a)the mother do keep the father advised in writing at all times of the names of any school attended by the children and ensure that his name and contact details are included in any documentation.
(b)the mother do authorise any school at which the children attend to provide to the father in respect of both children, copies of all school reports newsletters order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to the school a copy of this order.
(c)the father is at liberty to communicate directly with the school authorities for the purpose of arranging to attend for and attend for parent teacher interviews (separately to the mother) in regard to both children.
(d)the father is at liberty to attend all school functions, extra curricular functions to which parents are invited in the usual course in respect of [Y].
(e)the father is at liberty to communicate directly with the school authorities from time to time to discuss all matters relevant to the welfare and educational progress of [X] save that the father shall not attend school for this purpose during school hours or whilst [X] is present unless this is with the prior written agreement of the child and the mother.
(f)the mother and father do keep each other advised in writing of a current residential address and telephone number and advise in writing of a current residential address and telephone number and advise in writing of any intended change at least 14 days prior to any change.
(g)the mother do advise the father in writing of details of all medical and allied health professionals including counsellors psychologists and psychiatrists who may be providing assistance or treatment to the children or either of them and provide an ongoing authority to these professionals to provide information to the father about matters relevant to the health and welfare of the children upon a request by him for such information.
(h)the father is at liberty to communicate directly with the children’s medical professionals for the purpose of obtaining information as to matters relevant to their health and welfare including information about any treatment recommended or undertaken or medication prescribed.
(i)the mother advise the father as soon as practicable in the event that either child is prescribed medication on an ongoing basis for a mental health illness and prior to the child commencing such medication advise the father of the name and contact details of the doctor prescribing such medication and the reason for the medication and the father is at liberty thereafter to discuss the issue with the said doctor.
(j)the mother do advise the father immediately in the event that the child [X] suffers a significant illness or injury or requires hospitalisation.
(k)the mother and father advise each other immediately in the event that the child [Y] suffers a significant illness or injury or is hospitalised whilst she is in their respective care.
4.The children live with the mother.
5.The child [Y] spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school or 3.30 pm if it is a non school day until the commencement of school on Monday or 9.00 am if it is a non school day.
(b)from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2013 and each alternate year.
(c)for two hours on the child’s birthday and the father’s birthday as agreed and failing agreement from 3.30 pm until 5.30 pm on a weekday and from 10 am until 12.00 noon on a weekend.
(d)from 9.00 am until 5.00 pm on Father’s Day each year
(e)by telephone each Wednesday between 6.00 pm and 6.30 pm with the father to initiate the telephone call.
(f)by way of cards gifts and letter.
6.That the child [X] spend time and communicate with the father:
(a)as agreed between the child and the father from time to time.
(b) by way of card gift and letters at all reasonable times.
7.That changeover take place at the child’s school during school term and at the [D] Library on all occasions otherwise.
8.That the mother and father do all acts and things necessary to enable the children to engage in therapeutic counselling on an ongoing basis with a psychologist or counsellor nominated by the Independent Children’s Lawyer such counselling to assist the children to deal with the issues raised for them as a result of the parental separation and ongoing parental conflict and its effect on their relationships with their parents and particularly their father.
9.To facilitate the operation of order 8 hereof:
(a)the mother and father shall equally the costs of the counselling
(b)the mother will have input in the counselling at the discretion of the counsellor and attend as and when directed by the counsellor and make the children available to attend as and when directed by the counsellor.
(c)the father shall have input into the counselling at the discretion of the counsellor and attend as and when directed by the counsellor
(d)the order for the appointment of the Independent Children’s Lawyer be discharged 60 days from the date of this order to allow her to nominate the counsellor and assist to assist the process in motion.
(e)the Independent children’s lawyer shall be at liberty to provide to the counsellor copies of this order and nay judgment; copies of the family report prepared by Ms T dated 20 March 2012 and Mr H dated 28 June 2008 and the psychiatric assessment of Dr E in respect of the mother and father dated 4 April 2008.
(f)the Independent Children’s Lawyer shall be at liberty to liaise with the counsellor as to the parties compliance with this order until the date of her discharge.
(g)in the event that the therapeutic counselling ceases as a result of the unilateral decision of either the mother or father, as a result of non compliance with this order by either the mother or father or because in the opinion of the counsellor the therapeutic process is unable or unlikely to assist the family the counsellor is at liberty upon a request by any party (including the Independent Children’s Lawyer if applicable) to prepare a report as to the counselling.
10. That all applications be otherwise dismissed.
11. Usual 65DA(2) and 62B orders.
12. Certify for Counsel.”[7]
[7] See exhibit ICL 1
The Report
By order made under s.62G(2) of the Act on 20 December 2011 a family report was prepared and released to the parties in March 2012 (“the Report”).
The Report set out the background to the proceedings, identified and assessed each of the parties and provided the following evaluation, on the basis of interviews with the parties, the children and the material referred to therein:
“27.[X] and [Y] are primary school aged sisters. It appears they have experienced long-standing parental conflict both prior to and post separation. It is considered that they are acutely aware of the strongly entrenched and negative attitudes held by each parent in relation to the other. It is further considered that the girls have a developed awareness of the bitter and on-going legal proceedings concerning parenting arrangements, this continuing over the past five years.
28.There continues to be firmly held views by both Ms Cheever and Mr Barrie with parental communication characterised by suspicion and a lack of trust in relation to the motivation and beliefs held by each parent. Ms Cheever is of the view that both [Y] and [X] have been significantly emotionally impacted by their father’s lack of insight into the girl’s feelings and behaviours. She is also convinced that Mr Barrie suffers from a mental health condition believing that he continues to engage in threatening and erratic responses. Mr Barrie is of the belief that Ms Cheever has systematically alienated the girls from his parental presence and involvement. He described Ms Cheever as manipulative, vindictive and inflexible.
29.At the present time parental communication is limited to exchange of formal written letters. It appears that both parties present information in a manner that does not invite an exchange or sharing of parental preferences, rather there is a tendency to reinforce set expectations. It is considered that at the current time neither party is willing to act in a more co-operative or flexible manner in relation to parental decision making and parenting arrangements. It is further considered that both [X] and [Y] are aware of these issues with changeovers remaining stressful for all involved.
30.[X] at age eleven years has not spent time or communicated directly with her father for a period of approximately two years. She remains extremely reluctant to entertain the possibility of future communication with Mr Barrie or to engage in therapeutic counselling that has a focus on repair of her relationship with her father. [X] is considered to be emotionally vulnerable engaging in concerning responses when in proximity to her father, this directly observed during the interview process. It is further considered that [X] has emotionally withdrawn from Mr Barrie expressing a preference to not engage with him on any level at this time.
31.It is difficult to propose significant changes to the current situation of [X] given her strong reactions and personal decisions. Any perceived pressure to communicate or enter into a therapeutic process with her father is highly likely to result in [X] becoming further entrenched in her current thinking with the strong possibility that there may be concerns for her emotional well-being. It is acknowledged that Mr Barrie wants to resume a parental relationship with [X]. However any demands from him may well have the opposite outcome at the present time.
32.Ms Cheever described herself as the girl’s primary carer since birth. She further described Mr Barrie as not actively engaged with the girls prior to separation. She believes that [Y] and [X] are closely bonded with her with a weaker attachment existing with their father. Mr Barrie commented that his parental relationship is stronger with [Y] noting that he spent more time with her prior to separation. It appears that [Y] and [X] would identify their mother as the parent with whom they have the strongest emotional attachment, this relationship being of prime significance to them.
33.It is noted that during the post-separation period [Y] is now spending less time with her father with the current arrangement of alternate weekends and specified times during school holidays and on special occasions in place since December 2010. [Y] indicated that it is her preference not to change the current arrangements noting that being away from her mother’s care for a period of a week during school holidays is difficult for her. [Y] also indicated that it is her preference to continue her involvement and to be able to attend special social events such as friend’s birthday parties during the time she is with her father, this not always occurring. It is considered important that [Y]’s wishes be formally acknowledged.
34.It is considered that the on-going high level of parental conflict resulting in continuing legal proceedings over the past five years is not in the girl’s best interests. It appears that [X] has made the decision to withdraw from her father, this being her solution to distancing herself from parental hostility and dealing with the challenges of her relationship with him. It appears that [Y] also wants to limit her time with Mr Barrie in order to achieve stability and reduced anxiety in her life.
35.Both Ms Cheever and Mr Barrie are encouraged to engage in a more co-operative, respectful and constructive manner in relation to parental communication and decision making. Their ongoing ‘war’ is resulting in both children feeling continued anxiety and unhappiness with their family circumstances. Whilst respecting the girl’s reservations in relation to future engagement in therapeutic counselling, it is considered that they may benefit from involvement in a Supporting Children after Separation counselling program conducted by the [M] Family Mediation Centre. This program would offer the opportunity of both girls being able to express their thoughts and feelings more openly in a supportive service environment. This program could also offer individual counselling to Ms Cheever and Mr Barrie assisting them to develop further parental insights into the needs of [Y] and [X].
…”
The Report then made the following recommendations:
“37.That Mr Barrie and Ms Cheever continue to have shared parental responsibility for [X] and [Y].
38.That [X] and [Y] continue to live with their mother.
39.That both children have the future opportunity to communicate and spend time with their father.
40.That [Y] continues to spend alternate weekends from 5pm Friday until commencement of school on Monday, for negotiated periods during school holidays and special occasions and at other times by agreement. Location of changeovers to remain the same.
41.That [X] and [Y] have the opportunity to engage in the Supporting Children After Separation Counselling Program offered by [M] Family Mediation Services.
42.That Ms Cheever and Mr Barrie engage in counselling offered by the [M] Family Mediation Services in order to enhance parental understanding of the girl’s individual needs.
43.That Mr Barrie and Ms Cheever improve their parental communication being mindful of the emotional impact on the girls of on-going hostility and conflict.”
Evidence at the final hearing
I have not recited, nor do I intend to recite all of the evidence that was presented at final hearing. However all of that evidence, and the submissions made by the parties, has been considered and taken into account.
In Saunders& Saunders[8] it was said:
“[R]estraint is called for in expressing views about the parties because the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”
[8] Saunders & Saunders (1976) FLC 90-078
However, in order to be able to determine this application for parenting orders for the children, where those otherwise responsible have asked the Court to make decisions affecting the children, it is necessary to form an assessment of the character and personality of the parties in this case.
Firstly in my view the parties’ recollection of past events has been tainted by their ongoing hostility. Neither party has any trust in the other parent. This leads me to view much of their evidence with considerable caution.
However I have more concerns about the mother’s evidence than that given by the father. The mother’s portrayal of the father was unrelentingly negative. Her evidence suggested she wanted to give the worst possible impression of him (particularly as a father) to achieve the outcome she wanted in these proceedings. This impression was reinforced by the mother’s failure to make obvious concessions in cross examination.
When confronted by the Independent Children’s Lawyer with her trenchant and unrelenting criticism of the father, the mother sought to dissemble or retreated to blaming others for the absence of material in her affidavit. I found the mother, almost invariably when the questioning became difficult, to be evasive and uncooperative.
In contrast the father as a self represented litigant left the clear impression of a composed, considered and intelligent man who had given a great deal of thought to the issues in the case.
During cross examination by Counsel for the mother and by Counsel for the Independent Children’s Lawyer the father not only made appropriate concessions but admissions against interest.
As a consequence I have more doubts about the reliability of the mother’s evidence than that of the father. In the event it was necessary to do so I would prefer the father’s version of events.
Evidence of the mother
The mother in her “trial affidavit” filed on 18 July 2012 deposed:
“…
8.Final parenting Orders were also made on 6 August 2008 by Justice Cronin (“the 2008 Orders”) which provided that the children live with me and spend time with Mr Barrie each alternate weekend from the conclusion of school Friday to the commencement of school on Tuesday for a period of (nearly) two months, and thereafter gradually increasing over two further stages to:
(a)each alternate weekend from the conclusion of school Friday to the commencement of school Wednesday for a further period of two months; and then
(b)each alternate weekend from Friday after school until the commencement of school Thursday.
…
Care arrangements post separation
19.As deposed to above, both children experiences significant difficulty adjusting to the graduated share care arrangements provided for in the 2008 Orders. Nevertheless, I did my best to encourage the children to spend time with Mr Barrie and the arrangements pursuant to the 2008 Orders which were largely adhered to, save for negotiated changes from time to time. The difficulty experienced by the children in adjusting to these arrangements were largely brought about by the deep seated attitude and resentment by Mr Barrie (Presumably over our separation and the need for Court Order to see his children) which saw him lash out, harangue and continually remind the children of “their obligation” to spend time with him pursuant to Court Orders which ultimately served only to create fear and animosity between the children and him. This berating of the children would be set off by extreme mood swings which made his behaviour appear erratic and unsettling to the children.
20.Prior to spending time with Mr Barrie, the children would both state to me repeatedly that they did not want to see
Mr Barrie. These protests would follow with violent tantrums and outburst that gave rise to concerns not only about their physical welfare but emotional wellbeing. Both children would become hysterical to the extent that [Y] was so agitated that she would put out her hair and [X] would kick and spit at Mr Barrie, refusing to go with him. This would occur on a fortnightly basis each time the children were to spend time with him. This in turn has caused greater animosity between Mr Barrie and me who in his affidavit sworn 28 March 2012 asserts that I have deliberately alienated the children from him and to which I unequivocally deny.
21.Whilst I have previously adhered to Court Orders and attempted to facilitate an ongoing relationship between both children and Mr Barrie, having presumed this to be in their best interests, I no longer believe that to be the case in regards to our elder daughter [X]. Certainly [X] has not had contact with Mr Barrie since May 2010 and her behaviour has appeared to have stabilized. [Y] has told me on numerous occasions that she finds it difficult to stand up to Mr Barrie and be upfront and honest about her wishes with him. She told me that on the few occasions that she has tried, he refuses to listen to her. [Y] however appears to have accepted that she is to spend time with Mr Barrie and remains open to spending time and communicating with Mr Barrie, which I will support and facilitate on an ongoing basis. She continues to indicate to me however, that she would like to reduce the amount of time spent with him and has told me that she thinks she would like to spend no longer than there consecutive days at a time with her father.
22.The children have previously met clinical psychologist Mr S for counselling which was recommended by a counsellor at their current school (who recommended private counselling). I considered that the children were benefitting from such counselling, which I funded, but unfortunately
Mr Barrie refused to let the sessions continue. I remain open to facilitating their attendance with Mr S for therapeutic purposes and at Mr S’s recommendation and suggest this as an alternative option to Ms T’s recommendation that the child attend [M] Mediation Centre given that they have an established relationship with Mr S and appear to be comfortable with him.
…
26.I also consider it very important that both Mr Barrie and I continue to support the children’s commitments to their extra-curricular activities and to their peers where possible. [Y] has expressed concerns to me that Mr Barrie has not supported or rather, refuses to provide a firm commitment to take her to [activity omitted] (and related events) or to birthday parties of her friends at school if it falls within his period of care. His refusal to provide [Y] with a firm “yes” that she can attend these events and that he will see to her transport provides little reassurance to [Y] and only serves to undermine her relationship with him. Mr Barrie’s sated position of “my time, my call” (as he has previously deposed to at paragraph 19 of an affidavit sworn on 2 August 2011 and filed in these proceedings) does little to reassure [Y]. As a result, I have had to arrange for any social engagements to fall within my weekend with the children. Whilst I acknowledge that it is also to [Y]’s best interests that she spend quality time with her father during her weekends with him, I confirm that Mr Barrie and I must bear in mind [Y]’s age and to allow her and encourage her to participate in extra-curricular and social activities when they arise which to date have provided her with a sense of normality, stability and an outlet away from the conflict at home. It is also normal for a girl at her age to do these things.
27.While I will endeavour to provide Mr Barrie with as much notice of these events as possible, our history of communication has meant that these issues fall towards the wayside and that his acknowledgement of [Y]’s weekend activities and confirmation that he will facilitate her attendance is not provided prior to [Y]’s time spent with him which has led to a great deal of uncertainly and hesitation from [Y]’s prospective. As is the present norm, Mr Barrie and I exchange letters by post in relation to matters concerning the children and do not communicate by telephone, text message or email. However, it does mean that it is not dynamic and that there may often be delays in responding to requests. I therefore seek an order that will oblige Mr Barrie to facilitate [Y]’s attendance at these extra curricular and important (to her) social events upon there being advance notice provided to him without there being need for me to request and seek confirmation of his cooperation. I believe that having this certain would be in [Y]’s best interests and would actually assist with her relationship with Mr Barrie.
28.I also seek an Order that [Y]’s alternate weekend time with Mr Barrie be varied to commence from 5.00 pm on Friday and to conclude at 5.00 pm on Sunday, in order to allow [Y] the opportunity to return home, prepare for school and spend time with her sister [X] prior to the commencement of the school week. It is important that there is minimal disruption to their relationship and bind that may result by virtue of their different parent arrangements and contact with Mr Barrie. In this regard my position differs from the recommendations contained in Ms T’s report that the present arrangement of 5.00 pm Friday to the commencement of school Monday continues.
…
31.As to school term holiday periods, and unless otherwise agreed, I propose that the usual alternate weekend arrangements continue throughout each Victorian Term holiday period. This will reduce the period of time that [Y] is away from home which will assist in managing her levels of anxiety and will ensure that the children are able to spend time regularly during the holiday period.
32.In terms of changeovers, I propose that changeovers take place at the [suburb omitted] McDonalds Family Restaurant or at the [omitted] Police Station if Mr Barrie moves to [R].
33.As to [X], I seek an Order for sole parental responsibility of her care, welfare and development, and that she continue to live with me and spend time with Mr Barrie at her initiative. While remain to facilitate a relationship between [X] and Mr Barrie (provided that it is at [X]’s best interests) and will certainly encourage [X] to consider contact with Mr Barrie, I do not think it is in her best interests to require that she spend time with Mr Barrie, which at present will only cause her tantrums to escalate uncontrollable and potentially affect [Y]’s attitude and relationship with Mr Barrie. As it stands, [X] is not able to deal with being in the presence or vicinity of Mr Barrie and often becomes hysterical or very upset when within proximity of him. For this reason, [X] is not able to even accompany to changeovers when I collect or drop off [Y]. On this basis it is important that I am solely able to make decisions for [X] concerning her schooling, health and the long term issues particularly in the clear presence of there being any realistic prospect of Mr Barrie and I being able to communicate about these matters in the short term.”
The mother made repeated allegations during the course of cross examination that the father was mentally ill. The mother was confronted in cross examination with the absence of support for her view from any of the experts in these or earlier proceedings. The mother’s answers to those questions made plain she maintained her view, even in the absence of any expert evidence, on which to base this.
This unattractive aspect to the mother’s presentation during her evidence was consistent with her repeated attempts during the course of her evidence to deflect blame to others who had not provided her with the support or advice she believed was necessary to vindicate her position.
In the course of her evidence the mother was challenged on the failure to bring to this Court’s attention the anomaly between the order of
27 June 2011 in the Victorian Magistrates’ Court and the transcript of that hearing.
It is instructive that notwithstanding her answers in cross examination, the mother’s affidavit filed 27 July 2011 which she had sworn on her oath was true and correct suggested the parenting orders continued to be suspended.
In circumstances where there is a mandatory, statutory responsibility for parents who have equal shared parental responsibility to consult the other parent in relation to decisions to be made about “major long term issues” and to make a genuine effort to come to a joint decision, it was acknowledged by all involved in this matter that difficulties exist where a lengthy history of significant conflict attends the parenting relationship.
In this matter, there were many issues of significant dispute between the parties. It was similar in many ways to the situation that Murphy J faced in Lansa & Clovelly (supra), where he referred to the divergent positions of the parties as “pervasive and apparently intractable conflict.”
However as Murphy J has said, orders for “sole parental responsibility” mean at least arguably, that the “other parent” has no “duties, powers, responsibilities and authority” with respect to their child and this seems to be a very significant interference with the fundamental human right of a parent.[12]
[12] See also Hardie & Capris [2010] FamCA 1046
In final submissions the parties presented the Court with an agreed position on the issue of parental responsibility. Counsel for the Independent Children’s Lawyer submitted that an order for the mother to have sole parental responsibility was in light of the agreed position of the parties and the evidence that emerged during the hearing not only appropriate but in the children’s best interests.
Submissions made on behalf of the mother and with the father didn’t cavil with those made by the Independent Children’s Lawyer and confirmed an order for the mother to have sole parental responsibility was by consent.
In Carlson & Ors & Bowden [2008] FamCA 1064 and subsequently Murphy J made orders similar to that sort by the Independent Children’s Lawyer and agreed to by the mother and the father on this issue.
In Bane & Bane (No.2) [2011] FamCA 790 Murphy J also discussed the rationale for such order at paragraphs [73] to [86]. I respectfully refer to His Honour’s comments in that case as apposite in the context of this case.
In this case, it seems to me that the very long standing conflict and, sadly, its apparent intractability, points against the duties, powers and responsibilities attending to parental responsibility being exercised “equally.” I find that the presumption is rebutted by reference to the children’s best interests.
I accept and find that:
·the children need someone to be able to make decisions on long term issues;
·the evidence demonstrated the mother and the father have no capacity to communicate and co-operate; and
·the children will be living with the mother and the only sensible (and agreed) way that decisions on long term issues could be made would be for the mother to have sole parental responsibility.
I accept the submission made by Counsel for the Independent Children’s Lawyer and will order that the mother will however be responsible for making sure the father is kept informed of those decisions.[13] The Independent Children’s Lawyers proposed orders in this regard are I am satisfied in the children’s best interests.
[13] see Lennon & Lennon [2011] FamCA 571 where similar orders made
As a result of the declaration and order just referred to, the pre-conditions for the operation of s.65DAA of the Act are rendered inapplicable. The power of the Court to make parenting orders is not then conditioned upon that section (see MRR v GR [2010] HCA 4; (2010); 240 CLR 461). Of course, that feature does not preclude orders which effect either equal time or “substantial and significant time” as defined.
Equal time or substantial and significant time
Given the above discussion of the s.60CC factors and the position of the parties, the Court does not consider that both children spending equal time or substantial and significant time with each of the parties would be in their best interests.
In final submissions Counsel for the Independent Children’s Lawyer noted all parties agreed there was “nothing to be served” by prescribing specific time between [X] and the father. However balancing all relevant s.60CC factors and in light of the parties submissions I accept the submission of Counsel for the Independent Children’s Lawyer that the evidence is “strongly in support” of [X] participating in the independent therapeutic (counselling) process recommended by the family consultant.
I also accept the submissions of Counsel for the Independent Children’s Lawyer that it is in [X]’s best interest that the father be able to send cards, letters and gifts so that the child understands he wants to be there for her and so that she doesn’t feel he has abandoned her and is there when she is ready to see him.
As is clear from what is set out above, the mother’s final position differed from the final orders sought by the Independent Children’s Lawyer and the father on the issue of whether there should be an order for [Y] to spend time with the father or whether it should be contingent upon the outcome of independent counselling. The difficulty confronting this position of the mother is, as was acknowledged in submissions made on her behalf, the family consultant considered and rejected those options in her evidence before the Court. In the circumstances and given the evidence of the family consultant I believe the orders sought by the Independent Children’s Lawyer are more likely to promote the children’s best interests.
The same difficulty confronts the mother’s position in relation to the issue of the start of alternate weekend time and where changeover should occur for the purpose of [Y]’s time with the father.
Counsel for the Independent Children’s Lawyer in final submissions correctly identified the relevant evidence before the Court that in relation to [Y] (and despite the challenges this would present) it was in her best interests and important for her long term welfare that there be formal arrangements for her to see the father. Neither party contended otherwise or that there were any factors in s.65DAA that told against it. I accept the submission of Counsel for the Independent Children’s Lawyer that for this child, recognising her wishes (to provide her with a sense of empowerment) had proved to be a burden for her.
I accept the submissions made on behalf of the Independent Children’s Lawyer that to reduce [Y]’s anxiety it is preferable that her time start and finish at school. This will also minimise the possibility of further conflict and provides more opportunity for [Y] to settle into her time with the father and is reasonably practicable.
Conversely though for the same reasons the father’s position in relation to extended time during the holidays should be rejected. The family consultant’s evidence before the Court made clear this was an issue that was finely balanced but ultimately the need to address [Y]’s concerns about the fixed nature of and the length of time away from the mother meant the need to provide reassurance to her told against extended holiday time and overseas or interstate travel with the father.
I accept the submission of the Independent Children’s Lawyer that it is more likely to promote [Y]’s best interests that there not be extended time over the holiday period or trips overseas and passports as this would cause anxiety for the child.
Given the father’s evidence that he would ensure that [Y] attend her [omitted] commitments the only order necessary is given the pre-existing commitment for [Y] to attend the Jamboree from 1 to 14 January 2013 the time spent orders should be suspended during that latter time.
Given the above I am not satisfied the orders sought by the father in relation to extended time during the holidays and for passports are in the child or children’s best interests given the absence of a weight of evidence suggesting this was the case.
The recommendations of the Report and the family consultant in her evidence before the Court was that it was in the children’s best interests that this family (albeit separately) be involved in counselling. Counsel for the Independent Children’s Lawyer noted that the mother’s position that [X] not be involved should not be accepted given the clear evidence before the Court.
I accept the submission made by Counsel for the Independent Children’s Lawyer that neither child is old enough to understand the “full ramifications” of what has gone on and what could happen if there was no avenue to develop or maintain a relationship with the father. Those submissions which accord with the evidence before the Court is that both children need help to resolve issues their parents conflict has caused for them.
In relation to the disputes between the parties over the remaining parenting orders Counsel for the Independent Children’s Lawyer argued in final submissions in support of the orders sought by the father in relation to both Christmas and telephone time. The virtue of both arrangements is to allow for [Y] to also have the opportunity to enjoy time with the father’s extended family and in relation to telephone time provide a means by which [Y] can keep in touch with the father. Given the family consultant’s evidence of the pressure felt by them and to shield the children from inappropriate comments or conduct there should be orders for mutual non denigration. For the same reason the Independent Children’s Lawyer should explain these orders to the children.
Counsel for the Independent Children’s Lawyer didn’t argue against her instructor’s appointment not being discharged for 3 months. Neither party took issue with this. Whilst the Court will be making final orders, in absence of the Court being able to make an order under s.65L of the Act and as there are no registrars or family consultants to support such an order and where the children’s best interests demand that there be some independent involvement with the implementation of these orders to ensure the children have some support and there is some oversight of their implementation I don’t believe it is appropriate for the appointment to discharged until 6 months hence.
As noted earlier another issue which did arise for consideration was whether there should be interim or final orders. Whilst neither party sought an interim order given the evidence revealed that the children would benefit from ongoing independent counselling such a consideration necessarily arose because of the uncertainty that may obtain to such a process. This was a question raised squarely for the family consultant to opine on.
The evidence of the family consultant on this issue has already been set out. The parties were ad idem that final orders were more likely to promote the children’s best interests. The agreed position of the parties on this issue was hardly surprising in light of the evidence of the family consultant on the issue which I accept. Ultimately I accept that for these children’s best interests orders that provide an outcome which is marked by lower anxiety and less confusion or uncertainty is to be preferred and in this regard it is better for the Court to make final rather than interim orders.
Conclusion on parenting orders
For the reasons set out above I am satisfied the parenting orders set out at the beginning of these reasons for judgment are in the children’s interests.
Application to set aside Agreement
The application by the mother contained in the amended application filed on 18 July 2012 to set aside the Agreement is made pursuant to s.136 of the Child Support (Assessment) Act 1989 (“the CSA Act”).
The Agreement
After setting out its background, recitals and various definitions the Agreement[14] provides inter alia:
[14] see Annexure ‘CGC-2’ to the mother’s affidavit filed 18 July 2012
“…
2.Duration of Agreement
2.1.This agreement shall commence on its execution and shall in the case of each the children specified in Recital D, terminate on the first of the following events:
(a) the child dies; or
(b) the child turns 18;
2.2.The husband and wife covenant and agree that this agreement is to constitute a Binding Child Support Agreement pursuant to the provisions of Part 6 of the Child Support (Assessment) Act relating to the future financial support of the children.
3.Child Support Payments
3.1.The husband and the wife agree that in view of the care arrangements and in consideration for the entitlements each has received under the orders neither of them will pay periodic child support to the other for:
(i) [Y] in accordance with the assessed amount produced by the formula under the Child Support (Assessment) Act 1989; or
(ii) [X] in accordance with the assessed amount produced by the formula under the Child Support (Assessment) Act 1989;
For the period specified in sub clause 2.1.
3.2.In the event that the Registrar of Child Support shall require the wife or the husband to seek any period child support from the husband the wife shall acknowledge, if and when called upon to do so, that the husband and the wife have made and is continuing to make the requisite payment and this shall be recognized by an acknowledged periodic payment being paid as part of the total proceeds of sale payable to the wife under paragraph 5(iv) (a) of the orders and this shall represent 100 per centum of the annual rate of child support payable by him pursuant to such administrative assessment of child support for the duration of the Agreement.
3.3.The husband and the wife further acknowledged and accept that:
(a) by entering into the orders the husband has made provision for the payment of one half of the amounts required to educate the children at private schools and accordingly the wife shall pay and indemnify the husband against any future claim for the payment of school fees at any private school
(b) the wife is not required to ensure that the children attend private school through it is accepted that both parties would like that to occur;
…”
Evidence in relation to application to set aside the Agreement
Despite the potential importance of this issue it was only raised as an issue a little over a month before the final hearing and perhaps because of this the issue didn’t attract a great deal of attention during the final hearing.
The mother’s evidence in chief on this issue was:
“42.Pursuant to Court Order of 6 August 2008, I received a lump sum of $200,000 by way of non periodic child support as provided for in paragraph 3.3 of the Agreement for the children’s education. This sum has been set aside in a separate bank account and I do not intend to use that money for other than the purpose intended by Mr Barrie and I at the time of our property proceedings.
43.Since May 2010, [X] have been living with me solely whereas [Y] continues to live with me but spends time with her father approximately three nights per fortnight in each alternate week from 5.00 pm Friday to before school the following Monday. These arrangements are significantly different to the arrangement contemplated by the Agreement and provided for in the 2008 Orders that saw the children live with me for 8 nights in a fortnight from Friday night to Thursday night inclusive and with Mr Barrie for the following 6 nights. In accordance with the terms of the Agreement as set out above, I am not currently receiving periodic child support from Mr Barrie nor have I received any amount for child support since August 2008.
44.As deposed to above, I am not currently employed as I have returned to tertiary studies and otherwise continue to remain the primary carer to both children. While I hope to return to gainful employment in the future, my current financial, circumstances are such that without appropriate and ongoing financial assistance from Mr Barrie to assist with the children, I am placed in a very precarious and financially onerous position which in my view would be unjust if the Binding Child Support Agreement was not set aside.”
The mother was asked questions in cross examination by the father that elicited evidence from her that contrary to what was suggested by her affidavit things hadn’t become more difficult recently. It also elicited evidence from the mother that made clear she had the capacity and opportunity to work.
The father’s evidence in chief on this issue was in his affidavit filed
1 August 2012.[15] The father’s evidence on this issue made plain he opposed what he saw as the mother breaking the Agreement and still keeping the $200,000 he said she had got as a part of it.
[15] see paragraphs 86-95
The father’s evidence before the Court was the mother’s case did not amount to exceptional circumstances and in any event she could not establish hardship given the money in the bank and other resources she had to call on. The father’s evidence was what he found most distasteful about the mother’s application to set aside the Agreement was not only did he believe the mother deliberately undermining his relationship with the children she wanted to be rewarded for it.
Approach to the application
The mother’s application under s.136, must be considered in the context of the objects of the overall child support scheme.[16] Section
3 of the CSA Act contains the obligation that parents have a primary duty to maintain their children. Section 4 provides that the principal object of the CSA Act is to ensure that children receive a proper level of financial support from their parents. Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part VII include:
“a.that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
b.that parents share equitably in the support of their children.”
[16] see for e.g. In The Marriage of Lutzke (1979) 5 FamLR 553 at 559, see also Balzano & Balzano [2010] FamCAFC 11
Before setting aside the Agreement the Court must be satisfied of one of the matters set out in s.136(2) of the CSA Act. In this case the mother says that the Agreement should be set aside pursuant to s.136(2)(d) of the CSA Act which provides:
“In the case of a binding child support agreement that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.”
In Daley & Daley [2009] FMCAfam 398 where Brown FM referred to the meaning of “exceptional circumstances” in various contexts and stated:
“83.Section 136(2)(d) of the Act (the CSA Act) speaks of “exceptional circumstances”. In Simpson & Hamlin (1984) FLC 91-576 the Full Court indicated that whether circumstances were exceptional in any particular case was “very much a question of fact and degree.”
84.In the different context of an application to set aside property orders, Gee J indicated the question of whether a change of circumstances was exceptional or otherwise may turn on whether the change which had occurred was one not “within the reasonable contemplation or expectation of the parties” concerned (Sandrk & Sandrk (1991) FLC 92-260). In these circumstances, it was said that the ordinary circumstances and normal vicissitudes of life ought not be allowed to justify the return of a party to court to seek further property orders.
85.Exceptional if defined by the New Shorter Oxford English Dictionary as follows:
‘of the nature of or forming an exception; unusual, out of the ordinary; special, or (of a person) unusually good or able, et’
86.Accordingly, for circumstances to be exceptional, they must be unusual, out of the ordinary or special. In the child support context, in respect of an application for departure, Kay J held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases” Savery & Savery (1990) FLC 92-131.
87.In the Marriage of Gyselman (1992) FLC 92-279, the Full Court of the Family Court said as follows of the phrase “special circumstances”:
“Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.” (Ibid 225)
88.I am not persuaded that there is any significant qualities difference between “special” circumstances and “exceptional” circumstances. In my view, what is required, in the case concerned, is for it to be out of the ordinary run of cases and to be marked by some characteristic which render it unusual or something other than commonplace.”
As an applicant seeking to set aside a binding child support agreement (in this case the Agreement) under s.136(2)(d) of the CSA Act the mother must show, (in addition to the existence of the binding agreement (and it wasn’t suggested the Agreement was not such an agreement)):
a)the circumstances that prevailed at the time the Agreement was entered into;
b)the circumstances that prevail at the time the application is made to set the Agreement aside;
c)that exceptional circumstances have arisen between the two dates; and
d)because of such circumstances the mother or the children will suffer hardship if the Agreement is not set aside.
The onus is therefore on the mother to satisfy the Court that exceptional circumstances have arisen since the Agreement was entered into, and because of those exceptional circumstances, there will be hardship if the Agreement is not set aside.
Counsel for the mother acknowledged the burden fell to his client to satisfy the Court of those matters and indicated notwithstanding what was sought in the amended application if the Court determined that the Agreement should be set aside his client understood the Court may determine that the parties should be subject to the processes under the CSA Act.
Each party’s circumstances at the time of entering the Agreement
At the time the Agreement was made the mother was 46 years and the father was 50 years of age. As the recitals to the Agreement provided the children were spending “slightly more than 50% of their time (inclusive of school holidays)” with the mother and “slightly less than 50% of their time (inclusive of school holidays)” with the father.
At the time the Agreement was made the mother was studying and the father was working. The mother received a substantial payment as a part of the property settlement and the Agreement recorded that the parties would “like” the children to attend a private school.
In Appleton & Appleton [2011] FamCA 70 at [88] Austin J noted that in the case before him two agreements were entered into as consideration for one another so that the resolution of the parties’ legal affairs was achieved as a package (as in this case) and that was a salient consideration in the exercise of the Court’s overall discretion.
Events since the Agreement was entered into
The children’s care arrangements have changed significantly and neither party contends otherwise. The mother returned to the workforce and indicated in her evidence before the Court she will do so again whilst the father is only able to work part time and has a degenerative eye condition. There was no evidence that arrangements have been made to pay private school fees for the children.
The mother’s present circumstances
The evidence contained in her financial statement suggests that the mother has a home valued at over $500,000 apparently unencumbered, over $350,000 in the bank and $50,000 in superannuation. In her financial statement the mother swore she had an excess of personal expenditure over average weekly income and owned property to the value of $926,067. At the time the mother swore her affidavit she was working and I am satisfied can continue and/or return to work.
The father’s current circumstances
The father gave evidence he has a degenerative eye condition and there was no evidence led to contradict his evidence that his capacity to earn had been reduced. In his financial statement the father swore he had an excess of personal expenditure over average weekly income and owned property to the value of $44,586 and had $490,000 in financial resources.
Are the circumstances exceptional?
In Balzano & Balzano [17] (“Balzano”), Warnick J considered the meaning of “exceptional circumstances” in relation to section
136(2). He referred to the consideration of “exceptional circumstances” in Simpson & Hamlin[18] and to Brown FM’s decision in Daley & Daley (supra). In Simpson & Hamlin, the Full Court held:[19]
“…it was not sufficient that circumstances had arisen of an exceptional nature resulting in hardship to the applicant. The Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order.”
[17] Balzano & Balzano [2010] FamCAFC 11
[18] (1984) FLC 91-576, which was a s.79A application
[19] at p 79,659
The Full Court continued:[20]
“The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur…What amounts to “exceptional circumstances” is very much a question of fact and degree.”
[20] at 79,657 – 79,658
In Daley & Daley[21] Brown FM said:
[21] [2009] FMCAfam 398
“For circumstances to be exceptional, they must be unusual, out of the ordinary or special.”
In Balzano (supra), Warnick J referred to the Explanatory Memorandum which accompanied the present s.136 when it was introduced which stated:
“It is not intended that binding agreements should be set aside lightly. This amendment restricts the scope of the setting aside of binding child support agreements…”
In final submission Counsel for the mother contended that it was “open” to the Court to find there were exceptional circumstances. Whilst in his final submissions the father submitted a change in care arrangements for the children (which he claimed the mother had engineered) whilst significant, could not amount to exceptional circumstances.
Hardship
Even if I am persuaded that there are exceptional circumstances within the ambit of s.136(2)(d) their existence is not enough. An applicant must also show that he or she or that the child will suffer hardship if the Agreement is not set aside.
The mother’s evidence before the Court made plain that she wanted to return to study. However there was no evidence this was out of financial necessity. I am satisfied that she has the capacity to continue to undertake paid employment and resources to support herself.
In final submissions Counsel for the mother noted if the Agreement was set aside the parties would be subject to the process of any administrative assessment made and given their incomes there might not be any significant change. Whilst in final submissions the father argued the mother’s application to set aside the Agreement couldn’t be maintained as she had failed to demonstrate hardship.
On any description of the evidence as to the mother’s financial circumstances they couldn’t be described as desperate or “precarious”. The mother’s evidence such as it was didn’t point to any appreciable financial detriment and the disjunct between her assertion as to her “precarious” position and the evidence in her financial statement was not explained.
It is difficult for the Court to accept the mother’s evidence on this issue in the absence of relevant and pertinent evidence on the issue of hardship.
Whilst not ignoring the mother’s assertion she was in a “precarious” financial position the evidence just does not enable me to determine there will be hardship if the Agreement isn’t set aside.
Conclusion on application to set aside Agreement
The father noted in submissions and the mother’s evidence didn’t contradict this, that the mother had the capacity to earn and could do so. Whilst acknowledging there had been a change in the care arrangements for the children the father maintained they were not exceptional and the mother could not demonstrate hardship if the Agreement were not set aside.
The mother argued that in this case there have been exceptional circumstances since the Agreement was made. She argued that the change in care arrangements for the children was an exceptional circumstance.
The evidence does not enable me to determine the additional cost, if any, to which the mother has been put in providing for the children for the additional nights since the Agreement was made.
The father submits that the circumstances raised by the mother in and of themselves don’t create exceptional circumstances and further they were known to the mother at the time that the Agreement was signed.
Circumstances which are “exceptional,” must be outside the normal experience, in such a way that they are the exception and something more than a minor abnormality. The change must be such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonable expected to occur.”
A mere change in the number of nights a parent cares for children may fall into the normal changes as children age especially if the change is only one extra night a week. In this case the change in care arrangements for the children as the father conceded (albeit not willingly) was out of the ordinary and certainly different to what had been the case when the Agreement was made. However, where the mother had to demonstrate and, on the evidence before the Court I am not satisfied there would be hardship if the Agreement was not set aside the application to do so should be dismissed.
Conclusion
For the reasons set out above I make the orders set out at the beginning of these reasons for decision.
I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 5 October 2012
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