COLE & SANTOS
[2016] FCCA 674
•1 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLE & SANTOS | [2016] FCCA 674 |
| Catchwords: FAMILY LAW – Child – parenting orders – final orders – three children – best interests of the child considered – teenage children – teenage child subject to Orders – autism – commute. CHILD SUPPORT – Child support assessment – whether to depart from child support assessment - no special circumstances. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DA, 65DAA Child Support (Assessment) Act 1989 (Cth), ss.116, 117 |
| Goode & Goode (2007) 36 Fam LR 422 Gyselman & Gyselman [1991] 103 FLR 156 |
| Applicant: | MR COLE |
| Respondent: | MS SANTOS |
| File Number: | SYC 1232 of 2013 |
| Judgment of: | Chief Judge Pascoe |
| Hearing date: | 17 December 2015 |
| Date of Last Submission: | 17 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr David Dura |
| Solicitors for the Respondent: | Paltos Milevski Family Lawyers |
| Solicitor for the Independent Children’s Lawyer: | Ms Karen Shae (NSW Legal Aid) |
ORDERS
BY CONSENT, THE COURT ORDERS THAT:
The Respondent Mother have the sole parental reasonability for the children:
(a)X (“X”) born on (omitted) 1997 presently aged 17 years; and
(b)Y (“Y”) born on (omitted) 1999 presently aged 16 years; and
(c)Z (“Z”) born on (omitted) 2002 presently aged 13 years; (“the children”).
The Mother will:
(a)notify the Applicant Father of any proposed decision relating to the long-term care, welfare and development of the children and the reasons for the proposal, such notification to be given in writing at least one month before a final decision being made other than in the case of an emergency;
(b)take into consideration any view expressed by the Father about the proposed decision; and
(c)inform the Father of her decision in writing by email.
The children live with the Mother.
There be no order as to time to be spent between the Father and X.
The parties be restrained and use their best endeavours so as to prevent any other person from making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of the children.
Each of the parties shall notify the other of any serious and/or permanent health conditions that affect the children or either of them, including the results of medical testing to rule out any serious and/or permanent health condition.
The children continue to be enrolled and attend the following schools:
(a)Y – (omitted) School in (omitted).
(b)Z – (omitted) School in (omitted).
THE COURT ORDERS THAT:
There be no order as to time for Y to spend with the Father.
Z shall spend time with the Father as follows:
(a)During school terms, in a four week cycle:
(i)Week 1: No time;
(ii)Week 2: On Sunday, from 11:30am until 6:00pm;
(iii)Week 3: No time;
(iv)Week 4: On Saturday, from the conclusion of dance class (or 12-noon if there is no class) until Sunday 6:00pm.
(b)During Summer School holiday periods:
(i)From 11:00am on 22 December 2015 until 6:00pm on 24 December 2015;
(ii)From 11:00am on 9 January 2016 until 6:00pm on 16 January 2016;
(iii)Commencing from the 2016/2017 summer holidays, for two one-week periods (seven-days inclusive), being from 18 December to 24 December and as agreed in January;
(iv)For clarity, the Orders of 9 a) are suspended during all school holiday periods.
The Father provide the Mother not less than 10 days’ notice in writing of his unavailability to spend time with Z regarding order (9)(a) herein.
The Father provide the Mother not less than 60 days’ notice in writing of his unavailability to spend time with Z regarding order (9)(b) herein.
The Father is responsible to facilitate all transportation needs and requirements for Z to spend time with him.
Each party keep the other party informed of their current telephone number and current email address. In the case that a party’s telephone number and/or email address changes, the party whose number or address has changed is to inform the other party of the change and supply the new telephone number and/or email address to that party within 48 hours of the change.
The Father is to inform the Mother as soon as practicable of:
(a)any illness or injury that may be suffered by Y and/or Z whilst they are in his care; and
(b)the name and contact details of any medical practitioner or healthcare provider upon whom Y and/or Z may attend from time to time.
Each party be and hereby is, restrained from:
(a)Discussing these proceedings (or any of the issues raised in these proceedings) with or in the presence or hearing of any of the children, and;
(b)Showing any of the children any documents relating to these proceedings.
Each party pay Legal Aid, by way of deposit into an identified fund, $110, in relation to the cancellation fee of the Single Expert Witness.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are attached to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Cole & Santos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1232 of 2013
| MR COLE |
Applicant
And
| MS SANTOS |
Respondent
REASONS FOR JUDGMENT
Issue for Determination
The issue for determination in this matter is the time the Applicant Father will spend with the youngest child of the marriage, Z, born (omitted) 2002 and now aged 13 and eight months.
There are two other children of the marriage; the eldest son, X, born (omitted) 1997 and now aged 18, and the younger son, Y, born (omitted) 1999 and now aged 16 and eight months.
X is now (at the time of writing this judgment) of an age that prevents him from being subject to Parenting Orders under Family Law Act 1975 (Cth) (“the Act”). All parties at the Final Hearing agreed that no order should be made with regard to him.
Y was diagnosed with autism in September 2003. Y and the Father have a complicated relationship and have not seen one another for over two years.
The Father also seeks Court intervention in regards to a Child Support Assessment.
Background
The parties were married on (omitted) 1993. The parties separated on (omitted) 2007 and divorced on 20 January 2009.
The Father is in the (employer omitted) ((employer omitted)), recently graduated with a (qualifications omitted) and presently resides on the (omitted) of New South Wales, having moved there in November 2015, shortly prior to the Final Hearing of this matter.
The Respondent Mother is a (occupation omitted) employed by the (employer omitted) and presently resides in (omitted), a suburb of (omitted) Sydney.
These proceedings were commenced by the Father by way of Initiating Application, filed 8 March 2013.
At the first return date, 17 June 2013, an Independent Children’s Lawyer (“the ICL”) was appointed by His Honour Judge Scarlett.
The parties attended a Child Dispute Conference on 12 July 2013. A report was issued the same day.
On 17 July 2013, consent Orders were made, detailed the following:
a)The three children would live with the Mother;
b)The three children would spend time with the Father on a two-week cycle as follows:
i)Week 1: Wednesday from 5:00pm to the commencement of school on Thursday;
ii)Week 2: Wednesday from 5:00pm to the commencement of school on Thursday; Sunday from 9:00am to 7:30pm.
On 2 October 2013, Orders were made by consent detailing the following regarding X and Y:
a)Week 1: from after school Wednesday until before school the following Thursday and from after school Friday until 7:30pm on the following Saturday;
b)Week 2: from after school Wednesday until before school the following Thursday;
c)Week 3: from after school Wednesday until before school the following Thursday and from 8:30am Sunday until before school the following Monday;
d)Week 4: from after school Wednesday until before school the following Thursday;
e)School holidays: a week in December 2013 and a week in January 2014 during the school holidays period.
The same consent Orders provided for Z to spent time with the Father as follows:
a)Week 1: from after school Wednesday until before school the following Thursday and from 8:30am until 7:30pm on Saturday;
b)Week 2: from after school Wednesday until before school the following Thursday;
c)Week 3: from after school Wednesday until before school the following Thursday and from 8:30am until 6:00pm on Sunday;
d)Week 4: from after school Wednesday until before school the following Thursday.
e)School holidays: a week in December 2013 and a week in January 2014 during the school holidays period.
Further to these consent Orders, Judge Scarlett ordered a Clinical Psychologist as a Single Expert Witness to enquire into, and report upon, matters relating to the welfare of the three children with regard to factors found within s.60CC(3) of the Act.
The Single Expert’s Report was completed on 13 February 2014.
Since early 2014:
a)X has had limited time with the Father;
b)Y has not spent any time with the Father;
c)Z has spent time with the Father reasonably in accordance with the consent Orders of 17 July 2013 until November 2015; and
d)None of the children have spent block time with the Father during the school holiday periods since the 2013-2014 Summer holiday period.
The matter was listed for Final Hearing on 23 to 25 June 2015 before Judge Scarlett. The matter was relisted a further two times, until the matter was transferred to my docket and listed for Final Hearing on 16 to 18 December 2015. Two days was sufficient for the Final Hearing.
Submissions on Parenting
At the Outset of the Final Hearing, all parties concurred that the Single Expert Witness would not be required to give evidence. Accordingly, I excused her from the hearing.
The Father’s key argument put forward to the Court regarding Z was that, as the Father had little relationship with the older two brothers, parenting orders were required to ensure and support his relationship with her.
The Father did not press for orders to be made regarding Y. In his view, Y is now over 16 and a half and any order that the Court may make “would not make any difference” to their relationship.
According to the Father, he and Y had not seen one another for over two years and to introduce Court ordered time would only serve to “significantly disrupt” Y’s life.
The Father, however, did press for Orders to spend time with Z. The Father submitted that Court orders would promote stability and beneficial routine in Z’s “very busy schedule.”
Moreover, Court orders would support Z’s relationship with the Father in a household where no one else has an ongoing relationship with him.
Pursuant to the consent Orders agreed to prior to the commencement of the Final Hearing, the Father seeks the following orders as contained within Short Minutes of Orders submitted by the ICL on 16 December 2015, relevantly as follows:
“2. That Z spend time with the father as follows:
2.1 During school terms, in a four week cycle:
2.1.1 Week 1: No time
2.1.2 Week 2: From 11:30am until 6:00pm on Sunday
2.1.3 Week 3: No time
2.1.4 Week 4: From the conclusion of dance class (or 12 noon if there is no class) on Saturday until 6:00pm on Sunday.
2.2 During School holiday periods:
2.2.1 From ___am on 22 December 2015 until ___pm on 24 December 2015;
2.2.2 From ___am on 9 January 2016 until ___pm on 13 or 16 January 2016;
2.2.3 Commencing from the 2016/2017 summer holidays, for a period of 2 weeks during each summer holiday period being from 18 December to 24 December and from 19 to 26 January.”
Regarding 2.1.1, the Father seeks 11:00 to 6:00pm. The Mother seeks 11:00 to 3:00pm. See below at [191] “Interim Holiday Orders” for submissions and my Reasons on this point.
Regarding 2.2.2, the Father seeks the later date of 16 January 2016; the Mother seeks the earlier date of 13 January 2016. Further, the Father seeks the pick-up/drop-off times to be 11:00am and 6:00pm; the Mother seeks 11:00am and 3:00pm
Regarding 2.2.3, the Father seeks an additional week, thereby extending the January period to a two-week period. This extension is opposed by the Mother.
The Father also seeks that the four-week cycle in relation to term time be applied through the Autumn, Winter, and Spring holiday periods.
In relation to the application by the Father to spend time with Z for three weeks during the Summer holiday period, he submitted that the two periods (one period of one-week, and one period of two-weeks) would enable him and Z to travel to (omitted) to visit the paternal grandfather. A period of one-week would be impractical to facilitate a meaningful visit for Z to see her grandfather once a year.
Moreover, a two-week period would enable Z to explore the (omitted), which is a beautiful and interesting area, and would go to supporting Z’s expressed interest in the area, pets, and nature.
Additionally, the Father seeks that Z spend all future Easter long-weekends with him on the sole ground that all previous Easter holidays have been spent with the Mother (or together prior to their separation).
The Father submitted that responsibility for transportation for Z to spend time with him be shared between the Mother and himself.
The Father proposed that, on Week 2, he would drive to Sydney spend time with Z and return her to the Mother’s residence. However, on the Saturday of Week 4, the Mother would drive Z from Sydney to the (omitted), arriving at around 7:30pm. The Father would then be responsible to drop her off at the Mother’s residence by 6:00pm on Sunday. In the alternative, Z could travel independently from Sydney to the (omitted) and/or vice versa via the NSW Country Link train network.
The Father pointed out that this logistical burden on the Mother occurred only once a month, would demonstrate to Z that she supported Z’s relationship with the Father, and could be assumed by X or Y if required (which would then have the bonus of him being able to see one or both of them however briefly), other members of the Mother’s family, and by public transport.
The Father also submitted that the Mother’s assistance may be required as otherwise the Orders may be reasonably impractical as he does not yet know what his commitments as a doctor will be.
Counsel for the Mother also submitted that the key issue for any spend time with Order is certainty for Z.
The Mother asserted that a four-week cycle promoted routine and established a certain and solid regime that could be agreed to by all parties but was flexible enough to accommodate Z’s growth.
Counsel noted that certainty should not come with a rigidity which would result in Orders being abandoned; in this case, Orders should have sufficient flexibility for changing circumstances. Thus, in relation to whether the four-week cycle should be continued through the Autumn, Winter, and Spring holiday periods, the Mother argued that the rigid routine for term time should be relaxed and that Z simply remain with the Mother.
Counsel pointed out that the Father’s proposal, whilst suiting his schedule, fails to accommodate the fact that the Mother – who performs 90 percent of the care of the three children and 100 percent of the care of X and Y – will need to alter her schedule for the holiday period. Therefore, the continuance of the four-week cycle would be disruptive to the Mother and other family needs and will only draw criticism from the family, rather than support.
The Mother opposes the Father’s application for Z to spend time with the Father for three weeks during the Summer holiday period. The Mother asserts a two-week period of two single weeks is more appropriate.
The Mother asserted that a two-week period was ‘too much – too soon’ for Z as she is unaccustomed to large blocks of time with the Father. Counsel for the Mother submitted that there is no evidence before the Court that the Father can adequately support such a long period of care.
Significantly, it was submitted, a two-week period would greatly impact Z as she would be totally removed from her familiar settings, especially her neighbourhood and environment, her friends and (non-digitally accessed) social networks – which are of increasing importance as Z grows into and through her teenage years, her removal from direct contact from her brothers, and her insertion into a totally new environment.
The Mother stated that a sudden increase to two-weeks would be jarring, considering that the last block-time the Father has spent with Z was in December 2013.
I note that I Ordered that Z spend time with the Father for two single-week periods in the 2015/2016 Summer holiday period. See below at [191] “Interim Holiday Orders.”
The Mother opposed the Father’s application that the 2016 to 2020 Easter long-weekends be spent with him.
The Mother stated that the application was impractical as the 2016 and 2018 Easter dates fell outside of the gazetted Autumn holiday periods and would disrupt the four-week cycle regime.
Further, it was argued that the sudden absence of Z would be disruptive to the established family routine and did not take into consideration how Z’s absence would affect her brothers. Moreover, it did not consider Z’s reaction to being suddenly removed from a familiar family routine and from her brothers.
The Mother submitted that the Easter holiday application was more about the best interests of the Father rather than the best interests of the child. The Mother requested that the Court make no Orders as to Easter at all.
Regarding the logistics of travel for Z, the Mother opposes any suggestion for her to be involved. The burden on her for the convenience for the Father needs to be weighed against the efforts that the Mother makes for the other 26 days of the four-week (28 day) cycle.
The proposal suggested by the Father would mean that the Mother would spend driving along the (omitted) and Sydney for the entirety of Saturday afternoon and well into the evening. This would significantly disrupt her care for the other children, especially the strict routine required by Y.
Counsel submitted that it was overly onerous and unfair to burden the Mother with a logistical inconvenience of the Father’s making; it was the Father who chose to live on the (omitted).
In response to the Father’s offered alternatives, Counsel for the Mother stated that the Court could not order third parties (such as X, Y, or other family members) to act to facilitate parenting arrangements and that it was unreasonable to expect them to do so.
Counsel submitted that given the limited nature of the Father’s involvement in the family to date, journey times were an opportunity for him to demonstrate his support for the relationship between him and Z, both to her and to the other family members.
With regards to the proposition that Z travel on the train between Sydney and the (omitted) (a journey of approximately two hours), the Mother opposed any suggestion that a young girl of 13 years travel on a train for two hours in the dark and (in Winter) cold, and then navigate Sydney Central train station and Sydney buses to finally arrive at the Mother’s residence late on Sunday evening.
The ICL supported some of the Father’s and some of the Mother’s applications and submissions.
The ICL submitted that it was in Z’s best interest to have a routine that was predictable and stable. Certainty was of great importance as Z commences her teenage years.
The ICL opposed the Father’s application to continue the four-week cycle through the Autumn, Winter, and Spring holidays without breaking the routine.
The ICL suggested that disruption to the cycle would be better than the disruption the continuing cycle would cause the holidays. A suspension of the four-week cycle should occur during the shorter holiday periods to maximise the benefit of the break from school.
The ICL also supported the Mother’s objection to the Father’s application for a two-week period in the Summer holiday period.
The ICL submitted that two single-week blocks was sufficient and would support the relationship between Z and the Father.
The ICL further submitted that longer periods may inadvertently place strain the relationship and may not be in Z’s best interests. The ICL feared Z’s reaction to any sudden removal from her friends and regular environment and the move to a new environment, location and spending a long period of time with her Father and his partner, with whom she has not spent longer than overnight time.
I note that the ICL supported the two single-week periods in the 2015/2016 Summer holiday period for Z to spend with the Father. See below at [191], “Interim Holiday Orders.”
The ICL stated that the Father should bear the responsibility for transport in accordance with any parenting order as it was reasonably practical for him to do so.
Moreover, it was his decision to move to the (omitted) and so it was unfair for the Mother to be inconvenienced by his choice. The fact that he was placed on the (omitted) by his job, did not remove the fact that it was his choice to relocate his residence as opposed to commute.
Finally, the ICL submitted that to force the Mother to bear the responsibility of travelling a long way to drop-off and return home, whilst putting on-hold all her other duties to the family, was “setting the Orders up to fail”, thus promoting conflict and the risk of further litigation.
The ICL did not support the proposition that Z travel alone. The ICL raised concerns for Z’s safety in travelling on routes to which she was unaccustomed and, as she is alone, she may be vulnerable. Moreover, it was “unrealistic to have a chaperone.”
Submissions on Child Support
The Father contended that the information the Mother provided to the Department of Human Services (“DHS”), for a Child Support Assessment (“CSA”), was incorrect and misleading.
A document from DHS, entitled Decision Regarding Change of Assessment, dated 8 December 2015, was tendered without objection, entered into evidence, and marked “R1”.
The Mother was called give oral evidence.
The Mother deposed in Evidence in Chief, that Y had a full-time job at a (employer omitted) over the few weeks prior to Christmas 2015 and that he intended to use the money he earned to fund an overseas trip organised by his school.
In his cross-examination of the Mother, the Father relied on a document, entitled “Application to Change your Assessment, Special Circumstances”, dated 25 September 2015, lodged by the Mother to DHS, which was annexed to the Father’s affidavit, affirmed and filed 9 November 2015.
The Father questioned the Mother as to her requests to DHS to reassess CSA as revealed in the annexed document.
Specifically, the Father drew the Mother’s attention to the fact that she had requested financial support for X to attend university in 2016.
The Father put to the Mother that, as X was likely to receive an ATAR lower than required to enter an (unspecified) university course, such support was unnecessary and so the Mother’s claim for monies so as to maintain X at university was largely inflated and unnecessary. The Father also noted that the Mother’s request in this regard was not approved by DHS.
The Father also put to the Mother that she did not mention X’s application to join the (employer omitted) as an (occupation omitted).
The Mother replied that X’s application to the (employer omitted) was rejected prior to her application to DHS. This rejection had spurred the application to attend university and its inclusion in the CSA.
The Mother said that she has made mistakes “early on in the process” but had not purposely misled DHS and that all of her applications have been honest.
Regarding a copy of a CSA conducted in 2010, annexed to the Father’s Affidavit – Financial, affirmed and filed 2 February 2015, the Mother was questioned by the Father as to whether she owned a property at the time of that CSA, to which the Mother replied yes. The Father then asked the Mother why she had answered “no” to a question on the CSA form asking whether she owned a property.
The Mother replied that, as a result of the Father withdrawing financial support for school fees, she contacted CHS and was advised to lodge a Change of Assessment form. When completing the form, the Mother misread the question, thinking it was asking whether she had a mortgage over the home in which she lived. As she did not, so she answered “no.” The Mother restated that she did not intend to mislead DHS, and that it was an honest mistake.
Regarding another application made by the Mother, also annexed to the Father’s Affidavit – Financial, affirmed and filed 2 February 2015, the Father sought clarification of a question in which the Mother declared that her savings and assets totalled $1,000. However, later in interview with DHS, the Mother revealed that she had a share portfolio worth approximately $200,000.
The Mother again stated that she was confused and unfamiliar with the DHS Child Support processes, especially early on. She said her answer was not intended to mislead, nor have mistakes been repeated.
The Father raised issues regarding inconsistent superannuation values as listed on the application. The Father asserted that at the time of divorce in 2009, the Mother’s superannuation was valued at $900,000, yet three years later, she declared her superannuation to the DHS to be valued at $250,000.
The Mother could not explain the inconsistencies and mentioned several factors that may have caused her to become confused or arrive at a mistaken figure. Again she repeated her unfamiliarity with the child support system at that time, however she asserted that she now understands the importance of full disclosure and the manner in which DHS assesses claimants.
Counsel for the Mother sought clarification that as the Father had consented to certain Orders relating to the schools in which Y and Z were enrolled, whether he would be seeking to discharge those consent Orders. Also, whether he intended to challenge R1 in this Court.
Mr Cole stated that he intended to stand by his consent Orders but that he would be challenging R1 with DHS not in this Court.
Counsel for the Mother helpfully explained to the Father that if an Order as to Child Assessment was made by this Court, that Order may then constrain or prevent any challenge the Father may make to DHS.
The matter was adjourned to allow the Father to seek legal advice from the Court Duty Solicitor.
The Father asked one final question of the Mother in evidence. The Father asked the valuation of the Mother’s residence, which she had recorded at $1.3 million on the document referred to in [72]. The Mother replied it was an estimate she had arrived at following an informal internet-based valuation. The Father referred to his Affidavit – Update, affirmed and filed 9 November 2015, which annexed a copy of a professional valuation that valued the residence at $1.79 million.
The Father gave his Evidence in Chief. The Father has several issues with R1, namely the large asset pool, wealth disparity, the frequent and significant errors made by the Mother in her forms, and the amounts already paid.
The Father attested that he, at one point, attempted to change the children’s school, but was threatened by the Mother that if he did so she would take out an Apprehended Violence Order against him.
The CSA in R1 increased the Father’s school fees contribution from 50 percent to 63 percent. Moreover, the CSA “inflated” his taxable income to $154,000 from $135,000.
The Father ultimately put to the Court, that it was the Court’s decision whether to make an Order that departs from the CSA. The Father said that he wanted the CSA reduced, however that the Mother wanted the CSA increased. I note that this was not in any evidence led by the Mother.
Counsel for the Mother concluded his submissions by stating that she did not wish to cavil with the CSA in this Court, and stated that the total 50-50 percent contribution split between the parties in relation to the children’s education fees, health payments, and dance classes was “reasonable.”
The financial contributions that the Father made acknowledged that it was in the children’s best interest for the Father to participate in their lives, albeit financially in this regard, however that the contributions were “benefits that flowed directly to Y and Z.”
Finally, counsel suggested that the reason for the CSA’s ‘inflation’ of the Father’s income was within the parameters of the DHS’s when accounting for the Father’s Fringe Benefit Taxes. However, counsel repeated that the Mother did not wish to cavil on this point.
Relevant Law
The legal principles which govern parenting proceedings are set out in Part VII of the Act. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
Section 60B(1) of the Act enumerates the objects of Part VII of the Act as ensuring the best interests of the child, in this case Z, are met by:
a)ensuring that Z has the benefit of both parents having a meaningful involvement in her life, to the maximum extent consistent with her best interests; and
b)protecting Z from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
c)ensuring that Z receives adequate and proper parenting to help them achieve her full potential; and
d)ensuring that Z’s parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of Z.
In exercising my discretion as to what Order is in Z’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended. Although the two primary considerations detailed at s.60CC(2)(a) and (b) of the Act must assume greater importance than the additional considerations at s.60CC(3) of the Act when determining what Orders are in the best interests of Z, I must consider all the factors before making a determination.
In considering the objects of Part VII of the Act, it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court of the Family Court of Australia decisions, including Goode & Goode (2007) 36 Fam LR 422, and the High Court of Australia decision in MRR v GR (2010) 240 CLR 461.
With regards to the Court departing from a Child Support Assessment, s.117 of the Child Support (Assessment) Act 1989 (Cth) provides as follows:
“Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.”
(emphasis added)
Importantly, s.116 of the Child Support (Assessment) Act 1989 (Cth) requires that:
“Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).”
Parental Responsibility
Section 61DA of the Act requires the Court when making a parenting order in relation to a child to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either the Mother or Father or both (or a person who lives with either party) has engaged in:
a)Abuse of a child; or
b)Family violence.
or in circumstances where the presumption is rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental reasonability of the child.
Thanks to the efforts of all parties, many of the issues were narrowed prior to Final Hearing. Significantly, prior to the formal commencement of the first day of the Final Hearing, Short Minutes of Order to the following effect were submitted to the Court to be made by consent:
a)the Mother to have sole parental responsibility of all three children;
b)no Order as to X
In the circumstances, I regard the Court to be beholden only to the best interests of the child test, as articulated in s.60CA of the Act when considering whether to make any order related to parenting, as I was asked to do by consent prior to the Final Hearing commencing. This is significant as to otherwise, would require the requested consent orders to undergo the burden of tested evidence to displace the presumption provided at s.61DA(1) of the Act, as required by s.61DA(4) of the Act.
I questioned the Father as to his reasons for consenting to the Orders, especially to his agreement to not have equal shared parental responsibility of Y or Z.
The Father’s submissions were that the Mother has been the primary care giver to all the children to date. Moreover, the Mother has practically had sole parental responsibility to date. To argue over a point that is so largely moot is to incite anger and conflict.
Family stability is in everyone’s best interests, the Father submitted, especially for the children. To alter the parental responsibility for one child whilst not the other children would risk a rift in the dynamics of the family unit.
The Father’s intention is for orders to preserve his relationship with Z, not to insert his position into the family unit which, for a long time, has managed without him.
I am satisfied by the Father’s submissions on the matter. I find that it would not be in Y and Z’s best interests to apply the presumption for equal shared parental responsibility in circumstances where the Father plainly does not want (or at least, does not ask for) the responsibility.
I also note that the consent Orders include obligations on the Mother to notify and give reasons for any long-term decisions for Y and Z that she will take, to consider any view expressed by the Father to the decision, and to inform the Father of her ultimate decision in relation to the long-term decision discussed.
For clarity, the Orders made by consent on 16 December 2015 are incorporated into the Final Orders corresponding to these Reasons.
As the attendance of the Single Expert Witness was not required and the Court was asked by consent to excuse her, the cancellation fee in relation to her time is to be shared by the Mother and Father equally.
I note that as the presumption of equal shared parental responsibility has been rebutted by consent, I do not have to consider whether it is appropriate for Z to equal time or significant or substantial time with the Father. However, as always, the best interests Z of Z remain paramount in the following considerations:
“When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests…The child’s best interests remain the overriding consideration.” (Goode & Goode (2007) 36 Fam LR 422 at 440-441 [65.10]-[65.11], per Bryant CJ, Finn and Boland JJ)
Primary Considerations
Before discussing the best interests of Z, I wish to first discuss Y. The parties did not seek an Order as to Y. Moreover, the Father has consented to an Order giving sole parental responsibility of Y to the Mother.
These two factors are significant in three respects: First, Y is 16 years old. Coercing a young man of this age to do anything against his wishes is likely to be futile and to cause further conflict and on-going resentment. Young people of this age will ‘vote with their feet’ – Y has clearly voted in favour of his Mother, at least at this stage of his life.
Secondly, Y has been diagnosed with autism. No evidence was led as to his condition or the its severity but I regard it as common knowledge amongst the community and our society that those with autism require steady routine and regularity and are especially adverse to change and disruption.
Thirdly, Y and the Father have a complicated relationship which has caused a certain estrangement between them for the past two years. To force Y and the Father to suddenly spend time together after such a long absence and to cause such a change in Y’s routine is likely to cause far greater harm than any benefit (if it was so argued) to Y in spending time with his Father at this stage.
Clearly Y has relationship issues to be worked through, however none of this was the subject of evidence. I find that it would be inappropriate for the Court to interfere. The Mother has created a clearly stable and loving environment for Y to best enable him to achieve his potential. A Court Order would be likely to cause anguish and confusion and not be in the best interests of Y.
Accordingly, I find it contrary to Y’s best interests to make any parenting Order as to time with the Father. This is a matter for each to work through over time.
I make this finding for sake of clarity; I note again that no argument was offered by any party, including the ICL with regard to the Court making an Order with regards to Y.
As a consequence of making such a finding, and noting the fact that X is now 18 years old and thus not subject to parenting orders, the following consideration relates only to Z.
S.60CC(2)(a) The benefit to Z of having a meaningful relationship with both of her parents
Z is soon to be 14 years old. Parenting arrangements with regards to the Father and Z’s brothers have been inconsistent and the relationship between Father and sons has been haphazard and complicated. Z, however, has (on the evidence presented) managed to maintain a good relationship with her Father. In fact, Z expressed a wish to the Single Expert to see the Father regularly.
This rather fragile relationship is therefore to be protected. It was clear from the evidence and submissions that appropriate Orders would assist given the complicated relationships between the Father and the rest of the family.
I find that it is in Z’s best interests that her relationship with the Father be protected in a family where there is in no other family member with a present ongoing relationship with the Father.
It is clearly in Z’s best interests to have ongoing contact with the Father, as encouraged by the Act. The time Z spends with the Father needs to be appropriate for an adolescent of her age and stage of development. Time should be regular, but does not have to be for extended periods in order to be significant (I note that s.65DAA of the Act does not apply in these circumstances). Z needs a regime where there is certainty and the capacity for her to form appropriate attachments, routine, and boundaries.
The Orders I have made provide for regular time, structured to take into account Z’s age, her life to date, and current stage of development, recognising that she needs flexibility so as to spend time with her friends and her Mother and brothers.
s.60CC(2)(b) The need to protect Z from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
I note that there is no allegation or evidence of Family Violence or abuse.
There was no evidence to suggest that the Father poses any threat to Z’s psychological or physical well-being and safety.
Additional considerations
s.60CC(3)(a) Any views expressed by Z, and any factors (such as her maturity or level of understanding) the Court thinks are relevant to the weight it should give her views.
Z has clearly expressed the view that she wants an ongoing relationship with the Father.
The existing consent Orders as to the time Z is to spend with the Father on a four-week cycle represent a considered and appropriate regime that accommodates Z’s desires to not only see and spend time with the Father, but also acknowledges her other priorities, including school, her Mother and brothers, dance, and socialising with friends.
Z has so far managed to maintain her relationship with the Father despite the separation and divorce of her parents, the complicated relationship the Father has with Y, and the arms-length relationship the Father has with X. This shows substantial maturity on her part and demonstrates a significant bond.
Z would be aware of her brothers’ and the Mother’s views about the Father, yet Z has shown a level of maturity which enables her to accept the family situation but to also independently decide that she wants an ongoing relationship with the Father.
In these circumstances, given Z’s age, I give significant weight to her expressed views.
s.60CC(3)(b) The nature of the relationship of Z with: (i) each of the parents and (ii) other persons (including any grandparent or other relative of the children)
On the evidence presented, there is nothing which would lead me to conclude that the relationship between Z and the Father is other than loving and positive.
The Father clearly wants to maintain a relationship with Z.
All the evidence demonstrated that Z was happy when with the Father. This is significant as all other members of her family do not have a regular relationship with the Father.
I regard Z’s relationship with her brother’s to be especially important. Her brothers provide support and fraternal protection, especially in a situation where her Father may not be available. Clearly, her brothers are and will continue to be an important part of Z’s life.
Z clearly has a good relationship with the Mother, who has provided a stable and loving home for Z and her brothers.
Z clearly has a role in the Mother’s family, both in support to the Mother and possibly to Y.
The Orders for Z to spend time with the Father for two-weeks total during the Summer school holidays do not interfere with Z’s role and importance as a member of the Mother’s household.
Therefore, I find that Z’s relationship with her brothers and the Mother is not compromised by the Orders I make. I give this finding considerable weight.
Finally, I regard the relationship between the paternal grandfather and Z as one that should also be promoted.
Whilst evidence suggested that there was not a close relationship between the paternal grandfather and Z, the opportunity for Z to develop one with him is obviously to be supported.
I give this factor some weight when considering the length of time that Z is to spend with the Father, so that they may visit the paternal grandfather in (omitted) together, during the summer school holiday period.
s.60CC(3)(c) The extent to which Z’s parents have taken, or failed to take, the opportunity (i) to participate in making decisions about major long-term issues in relation to her, (ii) to spend time with her, and (iii) to communicate with her.
It seems plain that at some point in the parties’ separation and divorce the Father exited the lives of the children, and left the care of the family to the Mother.
This conclusion is supported by the fact that the Father consented to sole parental responsibility being given to the Mother.
With such a conclusion it is difficult to draw a positive inference as to the Father in relation to his commitment. Whilst not behaving in an antagonistic manner towards the family, the Father’s involvement has been at best, arm’s-length.
The Father has contributed to the financial support of all three children.
Evidence was led to suggest that the Father was involved in the decision making of where the children should be school, although the Father suggested (without evidence) that his participation in this regard was “under duress.”
The Court does not draw any negative inference from the fact that the Father did not proactively fight for the enforcement of Interim Orders that gave him time with the children. The Father’s inaction may reflect a desire to ‘keep the peace’ and respect the decisions of the older children.
It is an inescapable conclusion however, that the Father’s lack of contact with the children is likely to have had a detrimental effect on their lives.
I therefore find that, regardless of his intentions or reasons, the extent to which the Father has failed to take the opportunity to participate, spend time with, and communicate with his children does not reflect well on him as a parent.
The only positive for the Father is that Z has expressed a wish to have contact with the Father.
To this this extent, Z’s desire to spend time with the Father outweighs the negatives of his failure to participate in decisions, spend time, or communicate with the children.
s.60CC(3)(ca) The extent to which each of Z’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain her.
The Father has paid Child Support which directly assists in Z’s care; Z attends a good school along with extra-curricular activities, such as ballet dance classes. All other maintenance cost for the children have been met by the Mother.
I find that the Father has done all that is required of him with regards to Child Support payments. However, his discussion of financial payments during the Final Hearing was misconceived.
s.60CC(3)(d) The likely effect of any changes in Z’s circumstances, including the likely effect on her of any separation from (i) either of her parents, or (ii) any other child, or other person (including any grandparent or other relative), with whom she has been living.
Z has, for her entire life, primarily lived with the Mother. She has not lived with the Father or had any significant contact with him since the parties separated when she was five years old.
Z has a routine (primarily set by school), a network of friends, close family, activities, and routines which she has developed over time in relation to those around her and her wider environment.
It would be disruptive to make any significant changes to her routine. However, the Court does not seek to make Orders of such far-reaching consequence as to affect her daily life. Consent Orders have largely settled this issue.
Much of the Court’s decision in relation to the Summer Holiday periods comes down to the beneficial effect for Z in spending a two-week period away with the Father instead of a one-week period, in addition to a week prior to Christmas.
The Court previously ordered that Z spend a seven-day period in January 2016 with her Father during the Summer holiday period. The Mother’s preference for a four-day period only was considered inadequate, and the Mother offered no compelling reason as to why a four-day period should be preferred.
I am not persuaded by the Father’s argument that Z is ready to spend two-week periods during the Summer holidays with him.
The impact on Z, suddenly spending such a significant time with the Father may cause her an element of distress and/or discomfort because Z is so unfamiliar with the Father’s life-style, partner, house, location, and wider environment.
Moreover, during this time, Z will be prevented – by sheer distance – from pursuing her usual routine and activities, and interaction with her family and friends.
Such an outcome would not be in Z’s best interest and not in accordance with the need to protect the rather fragile relationship that currently exists between the Father and Z. In the future, Z may well decide for herself that she would like to spend more time with the Father.
s.60CC(3)(e) The practical difficulty and expense of Z spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis.
A key point of contention between the parties was the transportation arrangements for Z to travel from the (omitted) Suburbs of Sydney to the NSW (omitted) and back.
I find that the submissions of Counsel for the Mother appropriate and persuasive. The Mother should not have to carry the burden of significant travel – even if once a month – that would cause disruption and significant inconvenience to her family.
The decision to move to the (omitted) was the Father’s and Father’s alone. The commute from the (omitted) of NSW to the (omitted) Suburbs of Sydney is reasonably practicable for the Father; indeed many people make this commute every day.
Further, I find that, certainly for the present, it is inappropriate for Z to travel on public transport for long periods at night. Z may be able to safely manage such a trip when she is older. I do not think it appropriate to make an arbitrary order as to when such a date may arrive – when Z is ready she will know it and may discuss arrangements with her Mother.
s.60CC(3)(f) The capacity of (i) each of Z’s parents, and (ii) any other person (including any grandparent or other relative), to provide for her needs, including emotional and intellectual needs.
The Mother has always been Z’s primary carer. The Mother has shown great devotion, stamina, and care in raising three children (for the most part) on her own.
There is no question of capacity with regards to the Mother.
However, the Court has concerns as to the capacity of the Father, which is largely untested.
The Father’s behaviour towards X is at best described as ‘arm’s-length’. However, the Father’s relationship with Y is strained and complicated. Z’s relationship with the Father seems good and it is hoped that it continues to develop and strengthen. Appropriate time spent together will help to achieve this outcome.
However, as the Father has displayed very little, if any, capacity to contribute to the raising X or Y, it is difficult for the Court to have any confidence that his parenting of Z will be any better.
The opportunity is there for the Father to support Z and provide for her emotional needs. The Court expects that this will not be easy, and will require a concerted and devoted effort by the Father.
The Father is obviously very intelligent. The Court expects that the Father will use his time with Z well to add to her intellect and emotional well-being.
The Father’s partner appears to get along well with Z. No evidence was led to suggest that she would not be a supportive role-model for Z when Z spends time with the Father.
s.60CC(3)(g) The maturity, sex, lifestyle and background (including culture and traditions) of Z, and either of her parents, and any other characteristics of the children that the Court thinks relevant.
Z is a teenager.
She has shown significant maturity in her desire to maintain the relationship she has with her Father, despite conflict, different households, and distance.
However, Z’s life is predominately in Sydney. To order her to be removed from her normal environment, even for one extended period of time per year unless she was fully willing to go, would be contrary to her best interests.
s.60CC(3)(i) The attitude to Z, and to the responsibilities of parenthood, demonstrated by each of their parents.
The attitude of the Father towards the family is somewhat quixotic. At best, the Father sees an opportunity to be a Father to Z.
The fact that the Father has previously largely abandoned his parental responsibilities is regrettable.
The Father exhibits a certain degree of fatalism with regards to being a father figure to his relationship with X and Y, and applies only to spend time with Z. It is difficult for the Court to condone such ‘picking and choosing’ of which children to have a relationship, but there is a lot of history.
The Father’s attitude to Z is positive, and appears to be loving and genuine. The Father seems to regard his relationship with Z more as a friendship and a necessary connection rather than a relationship burdened with responsibilities and demands.
This consideration would be given significant weight in circumstances where the Court was asked to decide whether to award equal shared parental responsibility. However, this is not the case here.
s.60CC(3)(j) Any family violence involving Z or a member of her family.
I have mentioned this issue earlier; there is no evidence that Z, or any other family member, has been exposed to Family Violence.
s.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to Y and Z.
The Orders the Court has made are minimal and are structured so as to minimise any future conflict or disruption.
These Orders act as a protection from any outside pressure that deter Z from continuing or furthering her relationship with the Father.
Z will later be able to decide for herself the relationship she wants and will have with her Father. Until, such a time, these Orders preserve a minimum status quo and ensure that the relationship is preserved.
Interim Holiday Orders
Because of the date of the Final Hearing so close to the Christmas holiday period and the Father’s recent move to the (omitted), which had caused disruption to the Interim Orders of 2 October 2013, I made Interim Orders with respect to Christmas 2015 and January 2016 holiday time and change-over arrangements.
The parties all consented that these Orders related only to Z, and that the question of Y’s time with the Father was best left to Y’s own discretion.
I gave ex tempore Reasons for the Orders. I further stated that I would include them in this Judgment.
On the issue of the time for pick-up and return of Z for the period 22 December 2015 to 24 December 2015, I noted significant agreement between the parties as to the dates and the pick-up time. However, there was no agreement as to the time for Z’s return; the Mother wishes 3:00pm, the Father wishes 6:00pm.
I note that the ICL supported the Father’s proposed time. The ICL submitted that the 3:00pm return time was “arbitrary.”
Having regard to the fact that the Father will have to drive to and from the (omitted), it is appropriate that he and Z spend as much of the day as possible in activities other than driving along the freeway to Sydney. A return time to Sydney of 3:00pm also meant travel in the hottest part of the day.
The Mother put forward no compelling reason as to way 3:00pm should have been preferred to 6:00pm.
Accordingly, I decided the time of the return on 24 December 2015 was to be 6:00pm.
For the holiday period from 22 December 2015 to 24 December 2015, the Father is to pick-up Z from, and drop her back to, the Mother’s house.
With regard to the January 2016 period of holidays, there was again no compelling reason advanced as to why Z should not spend a week with the Father rather than the four days proposed by the Mother.
I note that the ICL supports the Father’s proposal for Z to spend time with the Father from 9 January 2016 to 16 January 2016. This was in-line with her submissions that the Father’s Summer holiday time with Z be two single-week periods.
The ICL submitted that it was important that Z’s time with the Father be maximised, and four days was insufficient given her age and the need to establish block-time with the Father.
The ICL also noted that the Mother’s original proposed orders suggested a one-week block period during the Autumn holiday period. The Mother’s change in position from a one-week to four-days, without adequate reason, is on the face of it and without explanation, inconsistent.
Given the travel times on pick-up and return days, again it is important that Z and her Father have time for activities together including possibly visiting her paternal grandfather in (omitted). I find this contact with extended family is in Z’s best interests.
There was no evidence to persuade me that it would not be in Z’s best interests to spend seven days with the Father. Z and the Father’s partner were said to get along well.
A week during the holiday period is appropriate time for Z to spend with the Father in a relaxed environment, unconstrained by daily parenting schedules.
Moreover, a week, as opposed to four days, will not prejudice the Mother’s time with Z, nor the time that Z spends with her brothers.
Constant short periods with long travel times are unlikely to be conducive to the betterment of the relationship between Z and her Father. Quality time for reasonable periods of time to enable and to pursue activities together is clearly important.
Therefore I found it appropriate that the Father pick-up Z from the Mother’s residence at 11:00am on 9 January 2016, and return her to the Mother’s residence at 6:00pm on 16 January 2016.
Child Support
I do not propose to make an order as to Child Support.
In limine, the Father did not have leave to apply to this Court as required by s.116 of the Child Support (Assessment) Act 1989 (Cth). However, for the sake of thoroughness and the fact that the Father was self-represented, I will discuss the matter further.
As noted earlier, the Father’s argument for Court intervention in the CSA was misconceived, and seemed to misunderstand the role of the Court when considering whether to depart from a CSA.
Whilst the Court does have jurisdiction to order a departure from a CSA, such departure must consider the “special circumstances of the case” and whether it is “just and equitable” and “otherwise proper” (see s.117 of the Child Support (Assessment) Act 1989 (Cth) above).
With the support of Counsel for the Mother, the Father obtained legal advice from a duty solicitor. After which, discussion and evidence on the matter of Child Support was largely benign and offered no reason for the Court to intervene.
In summary, the Father disputes the CSA, arguing that the assessment should be less. The evidence he led on this assertion was weak and inconclusive. The Mother’s position, which was not argued or pressed, was that the CSA should require the Father to pay more.
The circumstances of [this] case, without more compelling evidence from the Father and any evidence from the Mother, are not special.
The cross examination of the Mother by the Father resulted in answers that, in my mind, did not affect the CSA in such a manner that this Court should regard the circumstances of the CSA as special or out of the ordinary.”
I note the Father’s general attacks on the credit and character of the Mother were not useful to the Court.
The DHS has its administrative methods, both for assessment and for amendment of its assessment when mistakes are revealed.
As the Full Court of the Family Court of Australia said in Gyselman & Gyselman [1991] FamCA 93; 103 FLR 156; [1992] FLC 92-279; (1991) 15 Fam LR 219, [39] per Nicholson C.J., Fogarty, and Nygh JJ: “Each of those grounds [for departure from administrative assessment] is prefaced by the words, “in the special circumstances of the case.” Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with eth administrative formula result in the ordinary run of cases.”
Further, the inconclusiveness and inadequacy of the evidence led by parties prevents me from making a decision as to what is a “just and equitable” departure from the CSA.
Finally, I find it would be improper to make an Order in a situation where the Court’s jurisdiction is not properly invoked. The Father’s dispute (and the Mother’s un-argued position) is best brought to the attention of DHS.
Any Order that could be made in these circumstances would be ill-made for want of adequate evidence and would have the consequence of preventing the DHS from further involvement.
In the circumstances, I make no order as to Child Support.
Conclusion
I note that there is an ICL in this matter who have made a cogent and positive contribution to these proceedings.
Z is a teenager and she lives in a conflicted family situation. This means that Orders need to recognise and minimise any opportunity for conflict between the parents, and not involve her siblings. It is for this reason that the contact arrangements are clear, simple, and (in my view) appropriate.
The Orders allow regular contact with the Father whilst causing the least disruption to Z’s regime and continue to foster a firm ongoing attachment with the Mother and her brothers, with whom she lives and has continuously lived for her entire life.
For the above reasons, the Orders are appropriate and should be made.
I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe
Date: 1 April 2016
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