DARRETT & DARRETT - [2020] FamCA 236

FAMILY COURT OF AUSTRALIA

DARRETT & DARRETT

[2020] FamCA 236

FAMILY LAW – CHILDREN –Where a final parenting order was made in December 2013 which provided for the children to live with the mother, spend significant and substantial time with the father and for the parents to have equal shared parental responsibility – Where the father elected to move a significant distance away from the children in late 2015/early 2016 and his time with the children was reduced by necessity – Where the children currently live with the mother and spend alternate weekends, each Wednesday afternoon, and half school holidays with the father – Where the mother and the independent children’s lawyer propose a continuation of that arrangement – Where the father alleges that the mother poses an unacceptable risk of physical, psychological, and emotional harm – Where the father proposes that the children live with him and spend alternate weekends, each Wednesday overnight, and half school holidays with the mother if she lives a reasonable and practicable distance from the children’s school – Where the evidence does not establish that the mother poses an unacceptable risk of harm to the children – Where it is not reasonable or practicable for the children to spend increased time with the father - Where it is in the best interests of the children to remain living with the mother and continue to spend time with the father as per the current arrangement – Where both parents seek sole parental responsibility and acknowledge their inability to co-parent – Where the mother will have sole parental responsibility with an obligation to consult with the father.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where both parents seek a departure order pursuant to Pt 7 Div 4 and 5 of the Child Support (Assessment) Act 1989 (Cth) – Where the father had not served his application on the Child Support Registrar and thus his application must be dismissed – Where the father has been administratively assessed as having nil liability for child support on the basis of his income - Where the mother contends that, in the special circumstances of the case, the application of the provisions of the Child Support (Assessment) Act1989 (Cth) relating to administrative assessment would result in an unjust and inequitable determination of the level of financial support provided by the father for the children because of the father’s income, property or financial resources (s 117(2)(c)(ia)) and/or his earning capacity (s 117(2)(c)(ib)) – Consideration of the principles relevant to ss 117(4), (5),(7B), 123 and 124 of the Child Support (Assessment) Act 1989 (Cth) – Where it is just and equitable to make a departure order and an order for the payment of child support other than by way of periodic payment such that the father pay to the mother child support at the annual rate of $5,000 per child plus 50% of the children’s school fees and $500 per annum towards the costs of school uniforms, extracurricular activities etc.

FAMILY LAW – PROPERTY – Where the father sought to set aside the 2013 property order pursuant to s 79A(1) of the Family Law Act 1975 (Cth) – Where the father failed to establish a ground to set aside or vary the 2013 order and his application was summarily dismissed.

FAMILY LAW – COSTS – Where the mother took objection to substantial parts of the father’s affidavit and significant portions were struck out as a result – Where the mother put the father on notice that she would seek costs on an indemnity basis if he failed to withdraw the inadmissible parts of his affidavit – Where the mother now seeks those costs – Where the circumstances of the case are exceptional and justify an order for costs on an indemnity basis – Where the father is ordered to pay the mother’s costs fixed in the sum of $3,960 – Where the father is also ordered to reimburse the mother one half of the single expert’s fees.

Child Support (Assessment) Act 1989 (Cth) Pt 7 Div 4 and 5, ss 4, 141
Evidence Act 1995 (Cth) ss 118, 119, 122, 125(2)
Family Law Act 1975 (Cth) Pt VII, ss 79A(1), 117
Family Law Rules 2004 (Cth) r 4.23, 19.08, 19.18

Babbit & Babbit (2011) 46 Fam LR 77
Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR
Dwyer & McGuire (1993) FLC 92-420
Expense Reduction Analyst Group Pty Ltd & Ors v Armstrong Strategic Management & Ors (2013) 250 CLR 303
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Gyselman & Gyselman (1992) FLC 92-279
Hallinan & Witynski (1999) FLC 98-009
Hides v Hatton (1997) FLC 92-759
Jacks & Parker (2011) 45 Fam LR 52
Johnson & Page (2007) FLC 93-344
Kohan and Kohan (1993) FLC 92-340
Lightfoot v Hampson (1996) FLC 92-663
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Prantage v Prantage (2013) 49 Fam LR 197
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Simpson & Hamlin (1984) FLC 91-576
Suiker and Suiker (1993) FLC 92-436

APPLICANT:

Ms Darrett

RESPONDENT:

Mr Darrett

INDEPENDENT CHILDREN’S LAWYER:

Mr Tiyce

FILE NUMBER:

SYC

3229

2012

DATE DELIVERED:

9 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Carew J

HEARING DATE:

3 - 5 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

FKG Law

COUNSEL FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Reilly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Lawyers

UPON THE UNDERTAKING BY THE MOTHER, Ms Darrett, AND THE FATHER, Mr Darrett:

NOT TO PHYSICALLY DISCIPLINE THE CHILDREN K BORN … 2009 AND Z BORN … 2010

it is ordered that:

Parenting

All previous parenting orders in relation to the children, K born … 2009 and Z born … 2010 (“the children”) be discharged.
The mother have sole parental responsibility for the children and in the exercise of her sole parental responsibility:
(a) The mother shall provide the father with reasonable notice in writing of any intended parenting decision relating to a major long term issue (as defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”));
(b)       The father shall consider the mother’s written notice pursuant to subparagraph 2(a) and provide his views for the mother’s consideration;
(c)       The mother shall take into account any views expressed by the father; and
(d)       The mother shall keep the father informed as to any decision she makes in the exercise of her sole parental responsibility.
The children live with the mother.
The children spend time with the father at all such times as may be agreed in writing between the parents and failing agreement as follows:
(a)       During school term, and subject to subparagraphs 5(b) and 10(a), each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;
(b)       During school term, each Wednesday afternoon from the conclusion of school until 7.00pm or if the father wishes to return the children to the mother earlier than 7.00pm, the father shall give the mother no less than 24 hours’ notice by email;
(c)       Subject to subparagraph 5(a), for the first half of school holidays in odd years and the second half in even years;
(d)       Notwithstanding subparagraph 4(c), from 12.00noon on 24 December to 12.00noon on 25 December in even numbered years;
(e)       On Father’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
Notwithstanding any other provision in this Order, the children spend time with the mother at all such times as may be agreed in writing between the parents and failing agreement as follows:
(a) From 12.00noon on 24 December to 12.00noon on 25 December in odd numbered years; and
(b) On Mother’s Day weekend from after school on Friday until the commencement of school on Monday.
For the purposes of changeover in relation to the father’s time with the children pursuant to paragraph 4(b), the father shall return the children to the mother’s residence unless the mother nominates a different place for changeover.
For the purposes of all changeovers during school holidays, the parents shall effect changeover at the O Town Service Station.
During school holiday periods, the parent with whom the children are spending time shall facilitate telephone contact between the children and the other parent every third day, and at any other reasonable time as requested by the children or either of them.
In the event the children or either of them have a school related activity that falls on a weekend that the children would otherwise be spending time with the father, that weekend shall be substituted such that the father’s weekend shall occur on the weekend immediately after that activity and the mother shall advise the father of that substitution. Substitution of weekends shall be limited to no more than six weekends per year.
For the purposes of this Order:
(a)The calculation of time with a parent during school holidays shall be calculated on the basis that holidays commence the day after the last day of the school term and conclude the day prior to the resumption of school;
(b)In the event of changeover taking place mid-way through the holiday period as defined in this Order, that changeover shall occur at 12.00noon on that day.
The school year shall be determined in accordance with the gazetted school year for New South Wales public schools unless the children attend a non-state school in which case the school year shall be defined according to the school calendar for which the children attend.
The mother is permitted to make an application to obtain and/or renew an Australian passport (“Australian travel document”) for the children and with respect to this:
(a)       The children are entitled to have an Australian travel document notwithstanding that the consent of the father has not been obtained;
(b)       The children are permitted to leave the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained;
(c)       All officers of the Australian Passport Office and any other regulatory body responsible for the issue of Australian passports are authorised and directed to issue the new passports for the children upon the application by the mother, without the necessity for the father to provide his written consent to the issue of such Australian travel document; and
(d) This Order gives effect to s 11(1) of the Australian Passports Act 2005 (Cth).
The mother shall retain the passports in her possession save when the children are traveling overseas with the father.
Overseas travel with the children must occur during the school holiday period, during time the children spend with the parent intending to take the children overseas, or as otherwise agreed in writing between the parents.
In the event the children travel overseas with the father, the mother shall provide to the father the children’s passports 7 days prior to any travel and the father shall return the children’s passports to the possession of the mother within 7 days of returning from his travel with the children.
Each parent is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
Each parent shall advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
The independent children’s lawyer is requested to organise a meeting with the children to explain the effect of this Order to them within 2 weeks of the Order being made and such meeting may occur by electronic means.

Child Support

There be a departure from the administrative assessment of child support payable by Mr Darrett to Ms Darrett for the children, K born … 2009 and Z born … 2010 (“the children”) for the period from 1 January 2017 to the date of a terminating event and the annual rate of child support be set at $5,000 per child.
Mr Darrett provide child support to Ms Darrett for the children in a form other than by way of periodic amounts from 27 April 2020 as follows:
(a)By paying 50% of the school fees for the children while the said children continue to attend a public school, payable at the commencement of each term of the school year; and
(b)$500 per annum towards the costs of school uniforms, sports uniforms, books and extracurricular activities engaged in by the children during their enrolment at school.
The child support payable other than by way of periodic amounts is in addition to the child support payable pursuant to paragraph 19 and is not to reduce the child support payable pursuant to any child support assessment.
The father’s application for a departure from a child support assessment is dismissed.

Property

The father’s application to vary or set aside the property order made 23 December 2013 is dismissed.

Costs

The father is to reimburse the mother for one half of the costs paid by her to Dr BB, being the sum of $14,500, within 60 days of the date of this Order.
The father is to pay the mother’s costs relating to the successful objections taken to the father’s affidavit and privileged material fixed in the sum of $3,960 within 60 days of the date of this Order.
The application by the independent children’s lawyer for costs is dismissed.

Miscellaneous

The Senior Registrar of the Family Court of Australia at Brisbane Registry is requested to forward a certified copy of the orders made pursuant to Division 4 and 5 of Part 7 of the Child Support (Assessment) Act 1989 (Cth) to the Child Support Registrar within 28 days of this Order.
All outstanding applications (including the father’s Amended Response filed 28 January 2020) are otherwise dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 3229 of 2012

Ms Darrett

Applicant

And

Mr Darrett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Darrett and Mr Darrett first became involved in family law proceedings in 2012 and, despite a final parenting and property order having been made on 23 December 2013, the parties have frequently been involved in court proceedings since then. According to the father there have been 41 court events since 2012.
The matter returns to Court for determination of competing parenting, property, and child support applications.
The parents have two young girls, K aged 10 and Z aged 9. They live with their mother in Sydney and spend time with their father in the CC Region on alternate weekends and for a few hours after school on Wednesdays and also during school holidays.
The father contends that the children should live with him and he alleges that the mother emotionally, psychologically, and physically abuses the children. The allegations are denied by the mother and she contends that the current living arrangements should continue.
For the reasons which follow, the current living arrangements for the children will continue and the father will be required to pay child support. All remaining applications will be dismissed.

Issues

The parents and independent children’s lawyer (“ICL”) confirmed that the significant issues for determination at this trial are as follows:
a)The impact on the children of the limited time they are currently spending with the father by reason of the distance between the residences of the parents;
b)Whether the children are at an unacceptable risk of harm in the mother’s care by reason of physical, emotional, or psychological abuse;
c)Whether the parents have the capacity to make joint decisions in relation to major long term issues for the children;
d)If the children live primarily with the father, should there be a child support departure order in favour of the father; and
e)Whether the change in the care arrangements and the financial circumstances of the father warrant a child support departure order in favour of the mother.

Parenting Proposals

The mother adopts the recommendations made by the ICL.[1]
[1] The precise terms of the parenting order adopted by the mother are set out in exhibit 8 with some additional provisions sought by the mother appearing in handwriting at the end of the document.
The father proposes that the children live with him and spend time with the mother each alternate weekend, each Wednesday overnight, and half school holidays if the mother lives a reasonable and practicable distance from the children’s school. He also proposes that he have sole parental responsibility.[2]
[2] The precise terms of the parenting order sought by the father are set out in his Amended Response filed 28 January 2020.
The ICL recommends that the children continue to live with the mother and spend alternate weekends, Wednesday afternoons, and half school holidays with the father and that she have sole parental responsibility.[3]
[3] The precise terms of the parenting order is set out in exhibit 8.

Background

The current proceedings were initially commenced by the mother in 2017 when she wished to relocate to Melbourne. In 2018, a determination was made by this Court that the principles of Rice & Asplund[4] did not preclude a re-opening of the final parenting order. The mother no longer proposes to relocate.
[4] (1979) FLC 90-725.
The parents married in 2002, separated in 2012 and divorced in 2015. They have two children, K born … 2009 and Z born … 2010.
The mother is 43 years of age and employed as an educator. She lives with the children in rental accommodation on the North Shore in Sydney. The children attend Suburb DD Public School, which is a five minute walk from their home.
The father is 52 years of age and employed casually as a driver on average for 15 hours per week earning $25.00 per hour. He has been largely unemployed since about 2009, although he contends that he was the primary carer for the children until 2012. The father built his own home in the CC Region where he now lives. A Certificate of Completion by the local Council has not yet issued and the father concedes he cannot currently occupy the house with the children permanently. The father contends his property is worth $300,000.[5] It is unencumbered. The father moved from Sydney to the CC Region in late 2015/early 2016. The drive between the mother’s home and the father’s home takes between 1½ to 2 hours each way.
[5] A valuation for the property at $320,000 is also in evidence.
Until 2009, the father was employed in senior roles in the finance industry. He holds a Bachelor’s degree and a Master’s degree. He has also worked in the construction industry and has some self-taught building, engineering, and design skills.

Applicable legal principles – Parenting

Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[6]
[6]Family Law Act 1975 (Cth) s 65D.

A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[7] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[8] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.^[9]
[7] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[8] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[9] See Johnson & Page (2007) FLC 93-344, 81,890 [68], 81,891 [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[10] and said:
[10] [2019] FamCAFC 198.
38. In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
39. It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
40. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
41. As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:
51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[11] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[12]
[11]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[12]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[13] I now turn to consider the particular issues identified by the parties.

The impact on the children of the limited time they are currently spending with the father by reason of the distance between the residences of the parents

[13]Banks & Banks (2015) FLC 93-637.

It is common ground that the children have a close and loving relationship with the father and enjoy their time with him. The mother does not propose a decrease in the time the children currently spend with the father.
It is also common ground that the drive between the mother’s home in Sydney and the father’s home in the CC Region is 1½ to 2 hours each way.
After the father moved to the CC Region, the children continued to spend alternate weekends (Friday to Monday) and each Wednesday overnight with the father. This arrangement involved the children in significant travel and impinged on their ability to participate in extracurricular activities. After an interim hearing in 2018, the father’s time with the children was reduced so that the Wednesday time concluded at 7.00pm. The father now concedes that continuing the Wednesday overnights after he moved to the CC Region was not a good idea and he does not seek to reinstate that arrangement.
In the event the children remain in the primary care of the mother, it is neither reasonable nor practicable for the father’s time with the children to increase. I was not taken to any evidence that would support a finding that the children suffer any detrimental impact as a result of the ‘limited’ time the children spend with the father. The children are in fact spending significant and substantial time with him.

Whether the children are at an unacceptable risk of harm in the mother’s care by reason of physical, emotional, or psychological abuse

Despite the father alleging the mother poses an unacceptable risk of harm, he nevertheless concedes that the children are well-adjusted and doing well at school, and if the children were to live with him he does not seek to impose supervision on the mother’s time with the children. The father also made the decision to remove himself from close proximity to the children by moving to the CC Region. The consequence has been that the mother has been left to primarily care for the children with little emotional support and no financial support from the father.
The mother denies the father’s allegations that she has neglected the children or subjected them to physical, emotional, or psychological abuse.
The evidence relied upon by the father to support his allegations that there is an unacceptable risk of harm is somewhat scant, but as best I can identify it is as follows:
a)The mother left the children unattended on a number of occasions and in particular:
i)At about 2.19pm on 2 November 2019, Z told the father that the mother had taken K to a dance class. The call lasted about 15 minutes and the father did not hear or see any other person during the Skype call;
ii)On 12 November 2019 at about 8.24am, K informed the father that she and Z would be walking to school on their own because the mother had already left for work and they had to hurry to meet someone at the pedestrian crossing;
iii)On 18 November 2019 at 8.41am, K informed the father that she was walking to school on her own because the mother had to leave early and she did not want to be dropped at school early with Z;
iv)On 27 November 2019 at around 8.30am, K informed the father that she was walking to school on her own because the mother had left early for the day to go to work and had dropped Z at school when she left earlier;
v)On 2 December 2019, K told the father that she was walking to school by herself because her mother had already left for work and had dropped Z to school earlier;
vi)On one occasion the mother left K home alone for an unknown period when she was sick and did not return until about 6.45pm. The child contacted the father and asked if she could call him if she was scared;
vii)On occasions, the mother left the children home alone at 4.00pm while she has gone shopping;
viii)The children sometimes have a key to get into their home if the mother is working later than 3.30pm or she has some shopping to do;
ix)Some years ago the children told the father they were left alone in a car and released the handbrake causing the car to move forward and run into something; and
x)On one occasion one of the children was left alone in the car while the mother entered a library to retrieve the other child who was with the father.
b)On one occasion about two years ago one child said the mother had smacked her; and
c)On one occasion one child complained to the father about the mother calling her a “turd”.

Leaving the children alone

The father initially relied upon the children walking to school on their own as supportive of his allegation of unacceptable risk of harm. Ultimately, he did not press this evidence as material. The father conceded that he let the children walk alone from school to meet him at Suburb DD Shops on Wednesday afternoons, a similar distance to the walk to school from their home.
During submissions, the father also conceded that he had no problem if the children are left home alone for 10 or 15 minutes on occasion.
The father further conceded that it would be difficult for the Court to make a finding of unacceptable risk on the evidence about leaving the children home alone if the Court accepts the mother’s evidence that:
a)Her home is in a secure complex where any visitor has to be ‘buzzed in’;
b)Her home has seven close neighbours in the complex;
c)Prior to the mother leaving the children, she ensures that neighbours are home; and
d)The children have a phone and can contact the mother, the neighbours and the father.
I accept the mother’s evidence.
As to the allegation relating to leaving the children alone in a car, the mother denied knowing anything about such an incident and said the first she knew of such an allegation was when she read it in the father’s affidavit. The father conceded that he had never raised the allegation with the mother or anyone else at the time or subsequent thereto. If such an incident did occur one might have thought the father would have brought it to the mother’s attention at the time. I am unable to place any weight on what the father may or may not have been told by the children about such an incident.
The circumstances of the mother leaving one child in the car while she entered the library to retrieve the other child reflect more poorly on the father than they do on the mother. The mother requested the child in the library to leave with her but she refused and remained with the father. The mother then left the library but returned shortly after to retrieve the child. By this time the other child was in the car. The father did nothing to assist the situation or to encourage the child with him to comply with the mother’s request to leave.

Physical abuse

In relation to physical abuse, the father could only point to one example of one child complaining to him about two years ago of being hit by the mother and the father conceded that he did nothing about it. I conclude that the father did not consider it to be a serious incident. The father is not aware of any repetition and conceded that if smacking occurs, it is infrequent. The father is concerned about the mother using physical punishment out of frustration in the future.
On 24 April 2018, both parents provided undertakings not to physically discipline the children and there is no evidence that either parent has breached their undertaking. At the end of the trial both parents offered to continue to abide by their undertakings and fresh forms of undertaking were signed by each of them and are held with the Court papers.

Emotional/psychological abuse

It is not particularly clear from the father’s discursive and verbose affidavit material what evidence supports his allegation that the mother is emotionally or psychologically abusing the children. During his cross-examination of the mother, he seemed most perturbed by information received from one child in June 2019 that the mother had called the child a “turd” and threatened to preclude her attendance at a dance concert. As the text message exchange set out in the father’s affidavit demonstrates, the mother told the father that the child had been “unacceptably rude and disrespectful and as a consequence I am seriously considering not taking her to the dance concert on Sunday. … I hope you will support the parenting decision I make”. When cross-examined, the mother conceded that she may have called the child a “turd” and that it would have upset the child but said she and the child later discussed the incident and resolved matters. While calling the child a “turd”, if it occurred, is regrettable it does not demonstrate in my view an unacceptable risk of future emotional harm.

Conclusion about unacceptable risk in mother’s care

The evidence does not establish that the mother poses an unacceptable risk of harm to the children.

Whether the parents have the capacity to make joint decisions in relation to major long term issues for the children

As the father points out, he and the mother have been unable to agree on so many matters for so many years that they have been involved in legal proceedings one way or another almost since they separated in 2012.
It seems there are very few examples where the parents have been able to agree about decisions affecting their children. When they have, it seems to have required very long and drawn out communications or court intervention. The children often seem to be the conduit for discussion or negotiation and I accept the mother’s observations that the children appear anxious in those circumstances.
There are important decisions that will need to be made in the future, e.g. which High School the children attend, and it will not be in the children’s best interests for their parents to be unable to agree about such matters.

Conclusion as to what parenting order is in the best interests of the children

The presumption in favour of equal shared parental responsibility applies in this case. However, the parents have demonstrated that they are largely incapable of making decisions jointly e.g. the father would not agree to the mother obtaining passports for the children which necessitated court proceedings resulting in the mother being permitted to obtain passports without the father’s consent; the father refused to provide consent to the children travelling overseas on a holiday which necessitated court proceedings resulting in the mother being permitted to take the children overseas etc. The children are caught in the middle of disputes and used as conduits for information exchange. The children present as anxious in such circumstances.

The father conceded that the mother has made good decisions about matters relating to the children to date e.g. their attendance at Suburb DD Public School, and he has no concerns that the mother would not make good decisions in the future.
The children have lived primarily with the mother since separation. Their time with the father decreased by necessity once he elected to move to the CC Region.
Each parent acknowledges that an order for equal shared parental responsibility is not in the best interests of the children and each seek an order in their favour for sole parental responsibility.
It is common ground that the children have a close and loving relationship with each parent and that it is in the children’s best interests to continue to have a meaningful relationship with each of them.
The father conceded that a change in the children’s primary living arrangements i.e. to live with him, would be problematic for a variety of reasons including:
a)The father did not know how it would be explained to the children;
b)The children have been in their current routine for a long time and would find the transition difficult;
c)The father has not been the primary carer for a very long time and is not sure how he would manage it;
d)The children really like the environment they are in at Suburb DD Public School;
e)The children would miss their friends;
f)There is no guarantee he would be able to manage financially;
g)His house is not yet finished e.g. there is no shower and he does not have sufficient power to run his washing machine, and the children would not be able to live with him at the house permanently until he obtains a Certificate of Occupation from the local council.
The ICL recommends that the children remain with the mother and that she have sole parental responsibility. I accept that recommendation.
In my view the best interests of the children will be met by remaining in the primary care of the mother and in those circumstances the mother should have sole parental responsibility for major long term issues but she will be required to inform the father of decisions to be made and provide him with an opportunity for input. I do not propose to adopt the time period for notice relating to decisions as recommended by the ICL and adopted by the mother, i.e. 20 days, because I foresee that such a provision may invite dispute. The order I make will provide for the mother to give the father reasonable notice of any decision she intends to make relating to a major long term parenting issue. I am satisfied that the mother has done and will continue to invite input from the father in relation to such matters but an order for sole parental responsibility will enable decisions to be made in a timely way if the parents do not agree about the decision to be made.
The father’s time with the children will continue to occur each alternate weekend, after school each Wednesday until 7:00pm and half of the school holidays. I have adopted the proposed provision by the mother that she be able to swap a number of weekends each year that the children would otherwise spend with the father if the weekend conflicts with school related activities. I have done so because the children have missed out on activities important for them in the past because the father has not yielded to requests to swap weekends e.g. the children were unable to participate in their end of year dance concerts. The mother suggested during her oral evidence that she did not think there would be more than six such occasions each year. I have also adopted the mother’s proposals about the commencement and conclusion of school holiday time because it will be more convenient for the children. I have also adopted the other provisions relating to school holiday time (see the handwritten parts of exhibit 8) because I consider they provide greater clarity.
I have made a number of changes to the proposed minute of order submitted by the ICL and adopted by the mother in relation to the time the children spend with the father with the intention of minimising the prospect of dispute between the parents and because of some apparent inconsistencies e.g. a provision for alternating first half/second half of the Christmas school holidays followed by rather convoluted Christmas holiday provisions which would require many changeovers. Although an issue about the lack of plumbed water to the bathroom at the father’s home arose as a late issue, and seemed to account for the restrictions sought by the ICL and mother on the block periods to be spent by the children with the father, I am satisfied that the father has made and will continue to make appropriate arrangements for the children when they are in his care and that he will address this issue as soon as practicable. I considered not making any provision for the children to spend time with each parent on Christmas Day (given the distance between the parent’s homes) however, as both parents and the ICL sought some specific provision for Christmas Day I have included provisions in the order which provide for the children to share their time with each parent over the three days around Christmas each year. I have not adopted the provisions relating to shared Easter as it is most often the case that Easter falls during school holidays and I have made provision for first half and second half of school holidays alternating each year. The parents are always at liberty to vary the order if they are able to agree. If not, the order will apply.
Each of the parents provided input into the ‘specific issues’ provisions part of the proposed minute of order recommended by the ICL and I have adopted that minute because I am satisfied that it is in the best interests of the children.
Before concluding, I note that during submissions at the end of the trial the mother sought certain mandatory injunctions against the father in the following terms:
a)That the father be required to provide evidence of an occupation certificate for his residence and failing that, the father be restrained from spending time with the children until he has the occupation certificate.
b)That within 6 months of the date of the order, the father complete the installation of hot and cold running water to the bathroom at his residence where the children will reside during their time with the father and failing installation of hot and cold water to his residence in which the children reside with him, the children’s time with the father shall be day time only until the installation of running hot and cold water to his residence.
The father opposed the mother being granted leave at such a late stage of the proceedings.
I did not grant the mother leave to further amend her application, firstly because I was satisfied that the father will do what is required to complete his house as soon as reasonably practicable. Secondly, the children have been spending time at the father’s home for some time now despite the apparent plumbing deficiencies. Thirdly, I considered that such injunctions could potentially prejudice the children’s relationship with the father by limiting their time with him. Fourthly, compliance with the injunctions about plumbing would necessarily involve the children in any dispute because they would likely be the only source of information about whether or not water had been connected.

child support

The child support applications requiring determination concern departure from administrative assessment (Div 4 of Pt 7 of the Child Support (Assessment) Act 1989 (Cth) (“Child Support Act”)) and child support other than by way of periodic amounts (Div 5 of Pt 7 of the Child Support Act).
Relevantly for present purposes, an application for departure from administrative assessment under Div 4 may be made in the special circumstances of the case if the applicant or respondent to the application is a party to an application pending in a court having jurisdiction under the Child Support Act and the court is satisfied that it would be in the interest of either party 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 (see s 116(1)(b) of the Child Support Act).
I am satisfied as required. No submission was made to the contrary.
The objects of the Child Support Act include the following:
a)That the parents of a child have the primary duty to maintain that child and that duty has priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves;[14]
b)That the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support;[15]
c)The level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children;[16]
d)(Although in the context of encouraging people to make private arrangements) It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects.[17]
[14]Child Support Assessment Act 1989 (Cth) s 3.
[15] Ibid s 4(2)(a).
[16] Ibid s 4(2)(b).
[17] Ibid s 4(3).
Additional objects under Div 4 and 5 of Pt 7 include ensuring “that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents” and “that parents share equitably in the support of their children”.[18]
[18] Ibid ss 144, 121.
An application for a departure order must establish three things:
a)That in the special circumstances of the case there is a ground for departure;
b)That it is just and equitable to make a departure order; and
c)That a departure order would be otherwise proper.[19]
[19] Child Support Assessment Act 1989 (Cth) s 117; Gyselman & Gyselman (1992) FLC 92-279.
Circumstances will be ‘special’ if there are facts peculiar to this case that set it apart from other cases.[20]
[20]Child SupportAssessmentAct 1989 (Cth) s 117
In determining whether it would be just and equitable to make a child support departure order, the Court must have regard to the matters set out in s 117(4) of the Child Support Act.[21]
[21] Hides v Hatton (1997) FLC 92-759; See also Child Support Assessment Act 1989 (Cth) ss 117(6), 117(7A) and 117(7B).
In determining whether it would be otherwise proper to make a particular child support departure order, the Court must have regard to the matters set out in s 117(5) of the Child Support Act.[22]
[22]Hallinan & Witynski (1999) FLC 98-009.
An application for the payment of child support other than by way of periodic amounts is provided for in Div 5 of Pt 7 of the Child Support Act although I note that in the general powers of the Court under s 141 of the Child Support Act there is power to order child support in a lump sum.
A necessary prerequisite to determining an application for child support other than by way of periodic amounts is that there is an administrative assessment in force (s 123(2) Child Support Act) and that any application for a departure from administrative assessment be heard and determined first (s 123(3)).
Where the Court is satisfied that it is just and equitable and otherwise proper, an order for the payment of child support other than by way of periodic amounts may be made having regard to the matters set out in s 124(2),(3),(3A),(4) and (5).
Although I may not specifically mention in these reasons each subparagraph of each relevant section in the Child Support Act, I have considered all sections as required when making my determination.

If the children live primarily with the father, should there be a child support departure order in favour of the father

Although the issue for determination in relation to the father’s application for a child support departure order was premised upon the children living with the father, he also sought a retrospective departure order dating back to 2012.
Unfortunately for the father, r 4.23 of the Family Law Rules 2004 (Cth) (“the Rules”) requires child support applications to be served upon the Child Support Registrar at least 28 days prior to the hearing. The father’s application was not served as required. Nevertheless, the father was given the opportunity to serve the Child Support Registrar during the trial and to seek a waiver by the Registrar of the notice provisions. The father was unable to do so. Accordingly, I propose to dismiss his application.
In any event, the father’s prospective application was premised on a change in the primary care arrangements for the children. As the children will not live primarily with the father the circumstances giving rise to the application do not arise.
Additionally, the father’s retrospective application sought a departure order from 30 March 2012 to the date of trial. A court may only make a departure order under Div 4 of the Child Support Act “in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made” (s 118(2B) of the Child Support Act). Even where leave is granted, the relevant period is limited to a retrospective period of seven years (s 112(7)(a) of the Child Support Act).
In relation to the child support period for which leave would not have been required, I note that the ground for departure seemed to be based on the mother’s earning capacity. The father was critical of the mother’s decision to leave her employment with GG Company and intimated that she had done so in order to avoid paying him child support. In my view the father’s material failed to establish a ground for departure. The mother left her employment because the position at the bank was not conducive to her primary care commitments to the children. Since leaving GG Company she has qualified as an educator and now works five days per fortnight on a contract basis, and additional days which the mother anticipated obtaining. The mother has never avoided her responsibilities to provide financially for the children.
Even if the father had established a ground for departure it would not have been just and equitable or otherwise proper to make a departure order for reasons including that the children have been in the primary care of the mother since separation in 2012 and she has been solely responsible for their expenses apart from when the children are spending time with the father and two nominal child support payments made by the father in the past.

Whether the change in the care arrangements and the financial circumstances of the father warrant a child support departure order in favour of the mother

The change in the care arrangements relevant to this issue relates to the change that occurred as a result of the children’s time with the father reducing by two nights per fortnight as a result of the father’s change of residence to the CC Region. The financial circumstances of the father relate, in particular, to his ownership of an unencumbered property and his earning capacity.
The mother’s child support application seeks:
a)A departure from the administrative assessment by setting the annual rate of child support at $5,000 per child;
b)That the payment of child support be made by way of lump sum;
c)In addition to the annual rate of child support, the father pay 50% of the children’s school fees and $500 per child per annum for uniforms, books and extracurricular activities.
I note that the mother’s application for child support was served on the Child Support Registrar as required by the Rules.
It was submitted by the mother that leave was required to seek a departure order dating back to 1 January 2017 and leave was granted without opposition. Of particular significance in granting leave was the fact that the mother had originally filed an amended application for child support (in the same terms as her current application) on 22 November 2017 and, had the matter progressed to hearing in a more timely fashion, no leave would have been required. Whether or not leave was actually required is not something I need determine.[23]
[23] Child Support Assessment Act 1989 (Cth) s 118(2B) cf. Babbit & Babbit (2011) 46 Fam LR 77; see also ss 111, 112, 116, 118
If a departure order is made, s 118 of the Child Support Act sets out the particular orders a court may make including an order varying the annual rate of child support payable by a parent, as is sought by the mother (s 118(1)(a)).
Child support assessments with the father as the liable parent have been tendered for all relevant periods save 1 January 2017 to 1 October 2017. Although the assessments are ‘nil’ they are nevertheless assessments in force for the purpose of the relevant provisions. [24] Child support assessments have been tendered for the period prior to 1 January 2017 and subsequent thereto. For the period for which an assessment has not been tendered, I assume that child support assessments continued to issue during this period and that as the father was not employed nil assessments issued. In Jacks v Parker,[25] the Full Court held in circumstances where child support assessments for a relevant period had not been tendered:
[210] … In our view, the proper assumption was of regularity by the Child Support Agency in the performance of its duties, which would have involved the issuing of administrative assessments against both the husband and the wife as “liable parents”. The obligation to issue assessments against both parents would have continued until the happening of a “child support terminating event”…
[24]Dwyer & McGuire (1993) FLC 92-420; Jacks & Parker (2011) 45 Fam LR 52, 95-96 at [225]
[25] 45 Fam LR 52, 93 at [210].
The mother relied upon the following grounds to support her application for a departure order:
That, in the special circumstances of the case, application in relation to the children of the provisions of the Child Support 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 (i.e. the father) for the children because of the father’s:
(a)Income, property or financial resources (s 117(2)(c)(ia)); and
(b)Earning capacity (s 117(2)(c)(ib)).
The mother argues that the father has intentionally ensured that his income remains below the threshold so as to avoid paying child support. In other words, his income is artificially low because he has not pursued full time or even substantial employment in any area in which he has qualifications, skills or experience.
In the 2017 financial year the father’s taxable income was $1,206. In 2018 it was $21,435 and in 2019 it was $23,425. The father is currently employed casually as a driver. He earns about $380 to $450 per week ($19,760 to $23,400 annualised). The father’s hours of work are minimal, on average about 15 hours per week, and the father only works on Thursdays and Fridays.
It is common ground that the father now lives in his own home which is unencumbered.
Subsequent to separation, the financial responsibility for the children has fallen to the mother who was employed with Company GG until resigning in late 2016 to obtain her qualifications in education. She commenced as a full time educator in 2019. The mother’s full time position with Company GG was no longer compatible with the responsibilities of a primary care giver to the children. I consider her resignation to be reasonable in the circumstances.

Since separation the father has made only two child support payments, namely, $358 in February 2016 and $7.61 in June 2018, despite the children living primarily with the mother since separation and the father’s time with the children decreasing by two nights per fortnight from April 2018.
It has already been noted that the father has impressive qualifications and experience in the financial services industry. During the marriage he was employed full time as a manager typically earning a six figure salary. Prior to separation the father was made redundant but he has never returned to employment in a field in which he has both qualifications and experience.
The father owns an unencumbered property which he purchased using the proceeds of the property settlement arising as a consequence of the end of the relationship with the mother. The mother has used the vast majority of her property settlement on living expenses for herself and the children while she retrained as an educator and on legal fees in relation to these proceedings.
It appears that since the father elected to move to the CC Region in late 2015/early 2016 he has led a simple but to some extent self-indulgent lifestyle. For instance, the father describes his decision to work as a driver in the following terms:
817. I like this work, because I think it is important to match my skills and interests to the job. I have identified 4 things I would like in my ideal job – and 3 of them are: being outside; travelling; and working independently or by myself. My job as a driver gives me 3 of the 4 things I would like in my ideal job. My previous career in finance only gave me one of the 4. But, as we all know, there are disadvantages to all choices in life, and my job is not perfect.
…
825. … I was interested in exploring making honey, or doing work that makes use of the building planning, design, engineering and building skills I have acquired. Now that I have a job that pays all of my bills, and meets 3 of my 4 preferred job criteria, I am more inclined to explore reading the collected works of Charles Dickens or others, or buying a small second hand boat and go out catching lobsters up or down the coast. I might get bored with driving a van at some stage, and do something else. No – correction – I am sure I will get bored with driving but I’ll worry about that later.
…
827. At the end of these proceedings, I shall have more free time, which I intend to partly use by sleeping in, and reading the collected works of Charles Dickens, and other authors I am interested in. I might also do more casual work to earn a bit more money.
…
829. I note that second hand, 24ft, 1970’s model, fibreglass 4 berth yachts are available on the website gumtree for as low as $5,000. At some future stage, I would like to refurbish or build a small single masted yacht, and spend some of my time drinking beer and catching lobsters or mud crabs somewhere. …
The father contended during the trial that he is motivated to become a better person and a better parent. While such intentions are laudable, they cannot come at the expense of meeting his statutory obligations to financially support his children.
In determining the mother’s application it is necessary to consider each relevant child support period for which the mother seeks a child support departure order.
From 1 January 2017 to 30 June 2017, the father was unemployed and supported himself and the children, when they were with him, from his share of the sale proceeds of the former matrimonial home.
For the period 1 July 2017 to 30 June 2018, the father was in receipt of unemployment benefits (from September 2017) and also received family tax benefits and some child support payments from the mother.
For the period 1 July 2018 to 30 June 2019, the father was in receipt of unemployment benefits although he may also have been working casually as a driver from about February 2019.
For the period 1 July 2019 to the date of trial, the father was working as a driver for an average of 15 hours per week.
The father moved into his cottage as best I can determine, at some point between March and June 2019. He no longer has rent to pay or utilities as he is “off the grid”. He lives a very frugal lifestyle. His savings have been depleted on building his cottage. His weekly expenses are $360 per week ($18,720 annualised) including $104 per week in relation to the children.
The father has a credit card limit of $10,000 on which he said during his oral evidence he owed $1,900. The father also has a capacity to borrow using his property as security. He says in his affidavit:
823. I have also been in paid employment for more than 12 months, which means I could get a loan. If I elected to get a mortgage of say $20,000 over say 15 years, at current interest rates of circa 3.05%, with say HH Bank, my monthly repayments would be about $138.50, which would be easily affordable.
The mother commenced employment as an educator in January 2019. In the period January 2017 to June 2017 she was not employed but lived on her share of the sale proceeds of the former matrimonial home and her father also contributed to her living expenses. In the period 1 July 2017 to 30 June 2018, the mother continued her studies and lived on savings and received financial assistance from her family. In the period 1 July 2018 to 30 June 2019, the mother continued her studies before graduating in December 2018 and lived on savings and family assistance until commencing employment in January 2019. The mother worked on a contract basis from January 2019 and her taxable income was $1,321 per week.
Her current taxable income is estimated at $1,321 per week ($68,692 annualised). Although her contract is for five days per fortnight she anticipates working additional days. She also receives family tax benefit and rental assistance of $196 per week.[26] The children’s current weekly expenses are $493.
[26] Not taken into account for the purposes of determining a child support departure application – Child Support Assessment Act 1989 (Cth) s 117(7A)(b)(ii).
The mother seeks a departure order for an annual rate of child support of $5,000 per child from 1 January 2017 until a terminating event.
When assessing whether a person’s earning capacity is greater than their income, the court must be satisfied of a number of matters set out in s 117(7B) of the Child Support Act, namely:
(a)one or more of the following applies:
i.the parent does not work despite ample opportunity to do so;
ii.the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
iii.the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
i.the parent's caring responsibilities; or
ii.the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
In determining this issue I am particularly mindful of the objects of the child support legislation and, in particular, that a parent has a primary duty to maintain their children which takes priority over almost everything else and the level of child support is determined on a parent’s capacity and that parents with a like capacity to provide financial support for their children should provide like amounts of financial support.
I was not taken to any authority relating to the interpretation of the phrase “does not work despite ample opportunity to do so” and my own research does not advance matters. The father was in receipt of unemployment benefits for most of the relevant period but for about the last year he has worked on average 15 hours per week and only on Thursdays and Fridays.
The father submitted that he has not had “ample opportunity” to work because of the limited employment opportunities in his chosen place of abode. However, the father has a car and a driver’s licence. Even if there are limited job opportunities in JJ Town (where he lives) there are other towns and cities in reasonable driving distance from his home. Although the father contends he has applied for positions in the financial services industry (prior to 2013), I am not persuaded that he has made any reasonable steps to obtain employment commensurate with his earning capacity e.g. he acknowledged that when attending interviews his presentation was similar to how he presented to court save for the second day, namely in a soiled t-shirt with his long hair unwieldy.
The father also argues that he has not reduced his hours of work since separation because he was made redundant in 2009 and did not return to employment prior to separation. Further, he contends that he is currently working more hours than he has done since separation. The father says that it cannot be argued that his failure to return to the financial services industry was for the purpose of reducing his child support liability when he left that industry well prior to separation.
As to whether the father “changed his … occupation, industry or working pattern”, the father argues that as the changes to his occupation, industry and working pattern occurred well prior to separation this provision does not apply to him. However, there is no temporal limitation placed upon this phrase in the legislation. In my view, whether it can be found that a parent has changed occupation, industry or working pattern depends on the particular circumstances of each case.
In the circumstances of this case, the father works and has worked since separation to the minimal extent possible despite his considerable qualifications, experience and availability. He is not and has not been precluded from working because of his caring responsibilities for the children and there is no suggestion he has any health issues. Despite the father building his own cottage, he retained an obligation to contribute towards the expenses of his children. At the time of building he had access to his share of the proceeds of sale of the former matrimonial home in addition to a capacity to obtain some employment, even if part time.
Although the father denies that his decision not to work or to work minimal hours and not return to his occupation in the finance industry was unrelated to child support considerations, he bears the onus of “demonstrating that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child”. In my view, he has failed to satisfy his evidentiary onus. The father’s complete abrogation of his financial responsibilities towards his children is a powerful indication of his motivation for not working or not working more than minimal hours or not returning to a field of employment for which he is eminently qualified.
I find that the father had and has an earning capacity greater than his income. In my view, with proper application by the father, these parents have a like capacity for financial support for their children.
If I am wrong in my interpretation of the relevant statutory provisions, I would nevertheless find that the mother has established a ground for departure because the father owns an unencumbered property. Unlike the mother, the father was able to use his share of the sale proceeds of the former matrimonial home on acquiring a home. The mother, on the other hand, had to use her proceeds (at least in part) on financially providing for the children.
Additionally, the father has a financial resource, namely a capacity to borrow against his property.[27] It is “unnecessary for the court to seek to identify any specific source from which an obligation of the father to pay child support can be met … It is up to him to organise his own affairs in order to devise the means to meet his proper level of child support obligations”.[28]
[27]Dwyer & McGuire (1993) FLC 92-420 at 51.
[28] Ibid.
Given the particular background of this case, discussed in detail above, I find that there are special circumstances justifying a departure order. The mother has established a ground for departure and the sum sought by the mother is $5,000 per annum per child ($96.15 per week per child). The combined expenses for the children (in both households) is $597 per week with the mother currently paying $493 per week. An equitable share of the children’s expenses would be if both parties paid half i.e. $298.50 per week which would require the father to pay to the mother $194.50 per week ($10,114 annualised). The sum claimed by her is appropriate.
I further find that it is just and equitable and otherwise proper to make a departure order. In coming to this conclusion I have particularly taken into account the following matters:
a)The matters set out in subsections 117(4) and (5) of the Child Support Act;
b)The history of the mother’s almost sole financial support for the children;
c)The ability of the father to acquire a home which is unencumbered due in part at least to his failure to meet his financial commitments to the children;
d)The mother’s reliance on rental accommodation; and
e)The father’s cavalier attitude to his financial responsibilities as a parent.

Lump sum payment

The mother seeks that the father’s annual child support rate be paid in a lump sum and be credited against any liability under any relevant administrative assessment. No submissions were made in relation to this aspect of the mother’s claim.
An application for a lump sum child support payment is provided for in Div 5 of Pt 7 of the Child Support Act (s 123) i.e. ‘child support payments other than periodic amounts’. Additionally, I note that the Full Court in Lightfoot v Hampson[29] held that child support in a lump sum can be ordered under Div 4 of Pt 7 of the Child Support Act when reference is made to s 141 of the Child Support Act i.e. ‘general powers of the court under this Act’.
[29] (1996) FLC 92-663.
The lump sum can be credited against any child support assessment if the court is satisfied that it would be just and equitable and otherwise proper to do so and the lump sum payment equals or exceeds the annual rate of child support.
In the absence of submissions I am not inclined to order that the father’s prospective child support liability be paid as a lump sum. In my view his annual rate of child support liability can be met on a periodic basis. The recovery of the adjusted child support assessment arising as a result of the departure order will be a matter for the Child Support Agency and/or the mother.

School fees, extracurricular activities, uniforms, books

The mother also seeks an order for the father to pay half of the children’s school fees (whether at a public or private school) and $500 per annum per child towards the cost of uniforms, books and extracurricular activities. The mother does not specify a commencement time but I have assumed it is a prospective application.
No submissions were made in relation to this aspect of the mother’s claim.
An application for the payment of child support other than in the form of periodic amounts is made pursuant to Div 5 of Pt 7 of the Child Support Act (s 123(1)(a)).
While the parents have each independently considered sending their children to a private school, in the absence of evidence as to the likely cost of a private school I do not propose to make an order requiring payment of private school fees.
In 2019, the mother expended more than $7,000 in school fees and extra-curricular activity fees for the children ($134.61 per week). In her financial statement she estimates her current expenditure on education is $40 per week and $138 per week on children’s activities (which I assume refers to extracurricular activities). This represents an increase on 2019 expenditure of about $44 per week. These expenses have already been factored into the annual rate of child support for which a departure order will be made. It can of course be reasonably expected that these expenses will increase as the children attend high school and the ‘costs of children’ tables tendered as part of the mother’s case amply demonstrate the increasing costs of raising children as they get older.
In considering this application I have had regard to the considerations set out in s 124 of the Child Support Act and in particular:
a)The departure order I propose to make i.e. that the annual rate of child support be $5,000 per child;
b)Whether it would be just and equitable to make the order sought having regard to the matters mentioned in s 117(4), (6), (7A) and (8) so far as relevant;
c)In having regard to the earning capacity of the father, the matters mentioned in s 117(7B) so far as relevant and in this regard I refer to my discussion earlier in these reasons; and
d)Whether the proposed order is otherwise proper having regard to the matters mentioned in s 117(5).
Having regard, in particular, to the mother’s income and expenses; the increasing costs for the children as they get older; the father’s earning capacity and expenses; the father’s ownership of an unencumbered property; his capacity to borrow and the objects of the Child Support Act, I propose to make an order that the father pay half the children’s school fees. I note that the children will be attending high school in the not too distant future. I also propose to order the father to contribute $500 per annum towards the expenses outlined by the mother, which appears to be a reasonable sum. I have not ordered $500 per child because the mother identifies that $1,000 would cover those costs and in my view they should be shared.
As required by s 125 of the Child Support Act I am satisfied that it is just and equitable and otherwise proper not to reduce the annual rate of child support by the child support ordered to be paid for school fees and other expenses.

Other matters

S 79A Claim

The father’s Amended Response filed 28 January 2020 sets out a raft of provisions under the heading ‘property orders’ sought by him. In summary, the father seeks an order which would deprive the mother of her minimal assets including her car and her superannuation.
A final property order was made on 23 December 2013 (“the 2013 order”) following a contested hearing. In order for the father to succeed in his application for a further property order, he would first have to establish a ground to set aside or vary the 2013 order (see s 79A of the Act). The father did not seek to set aside or vary the 2013 order in his Amended Response but his Case Outline filed 29 January 2020 purports to address this deficiency by identifying a number of grounds to support such an application.
The matter proceeded before me upon the basis that the father was seeking to set aside the 2013 order despite no formal application being made to do so.
At trial I was not satisfied that the father had established a ground to set aside or vary the 2013 order and his application (such as it was) was summarily dismissed with reasons reserved. These are my reasons.
Pages 35 and 36 of the father’s Case Outline (and exhibit 2) purport to identify the grounds relied upon by the father for setting aside or varying the 2013 order. The father refers to subsections 79A(1)(a) and (d) of the Act which relevantly provide:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) …
(c) …
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

The particulars of the alleged miscarriage of justice were identified in the following terms:
a)The mother had failed to give full and frank disclosure with respect to her financial resources prior to the 2013 trial;
b)The expert witness in relation to parenting matters in the 2013 trial made errors of fact, judgement and opinion;
c)The 2013 trial judge made errors of fact in relation to the assessment of the father’s future earnings and contribution;
d)A 2014 valuation for the property represented an undervalue;
e)Communications occurring in the lead up to the sale of the former matrimonial home in 2014 were not disclosed to the father; and
f)An order in 2014 that the father pay the valuation fee.
The relevant circumstances that have arisen since the making of the 2013 order were expressed as follows:
That an order for the children to live with the father, in view of the fathers (sic) financial situation and present lifestyle, considering the lifestyle of Ms Darrett (sic), will result in significant hardship to Mr Darrett due to the increased financial costs associated with the increased care.
It is well established that the term miscarriage of justice should not be construed too narrowly and that it relates to the “integrity of the judicial process” which is not limited to the actual hearing before the court but “can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation”.[30]
[30]Suiker and Suiker (1993) FLC 92-436.
The matters referred to in paragraph 141 (b) to (f) above do not establish a ground to set aside or vary the 2013 order because they are either unconnected to the property proceedings, i.e. relate to the parenting proceedings, or are matters about which the father might have appealed i.e. errors of fact by the trial judge unrelated to the determination of whether or not a miscarriage of justice has occurred or relate to matters that occurred subsequent to the 2013 order.
The focus of the father’s allegations of non-disclosure can be summarised as follows:
a)When the mother left the former matrimonial home on 8 June 2012 she took with her the father’s bank statements and other financial records which made his access to financial document for the 2013 hearing difficult;
b)The mother told him during the relationship that if they divorced her mother told her that she would support her and she would not have to work if she did not want to;
c)Sometime after January 2012 the mother told him that he should be careful because her father had agreed to fund any court case that might result after the end of the marriage;
d)The mother was a beneficiary of the Darrett Family Trust and the father was advised by the mother’s solicitors that the trust had been wound up in 2007;
e)The mother did not disclose a copy of her grandmother’s will. Her grandmother died in 2017 or 2018; and
f)Prior to the mother vacating the former matrimonial home the father took a photocopy of three credit cards in the mother’s name, and in her financial statement filed 4 June 2012 she disclosed only one credit card with no account number.
None of the matters identified by the father establish a miscarriage of justice.
The circumstances identified by the father as occurring since the 2013 order, i.e. that the children live with him, were dependent upon the outcome of the parenting trial but even if the father had succeeded in obtaining an order for the children to live with him some seven years after the 2013 order, that of itself would have been insufficient to establish circumstances of an exceptional nature. As the Full Court observed in Simpson & Hamlin,[31] it can be expected within the “ordinary vicissitudes of life” that changes to parenting arrangements will occur from time to time. For a change to be exceptional it must be something to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”.
[31] (1984) FLC 91-576.
The father failed to establish a ground to set aside or vary the 2013 order but even if he had established a ground I would not have exercised my discretion to set aside or vary the 2013 order given the history of the father’s failure to meet his financial obligations to the children and his superior asset position to that of the mother i.e. he owns an unencumbered property and has a capacity to borrow while she lives in rental accommodation and has no assets of significance.

Reasons for ruling on privileged material

A preliminary matter determined at the outset of the trial related to the father’s wish to rely upon and refusal to return or destroy documents that were mistakenly provided to him by the mother. I made the following ruling:
That the email and any attachments to the email sent by the mother to the father, which the father acknowledges was sent to him in error and was clearly intended to be sent to her solicitor are and remain privileged documents and are not to be used in the proceedings and I direct that the father either return those documents or destroy those documents forthwith and I will provide my reasons at a later date.
I now set out my reasons.
Evidence cannot be adduced in proceedings if, on objection by a client, the court finds that adducing the evidence would result in disclosure of a confidential communication between the client and a lawyer for the dominant purpose of the lawyer, providing legal advice to the client or for the dominant purpose of the client being provided with professional legal services relating to court proceedings (see ss 118 and 119 Evidence Act 1995 (Cth) (“the Evidence Act”)).
The father did not cavil with the email being protected by client legal privilege. He nevertheless submitted that he should be permitted to adduce the evidence and if not, he should not be required to return or destroy the documents.
The father argued that s 122 of the Evidence Act supported his argument that he was not prevented from adducing evidence. In particular the father relied upon the following provisions of s 122:
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)Without limiting subsection (2), a client or party is taken to have so acted if:
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)…
(4)…
(5)…
(6)This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
The father’s arguments were without merit for the following reasons:
a)As the father readily conceded, the mother did not consent to the adducing of the evidence;
b)The mother informed the father shortly after it was sent that the email had been sent to him in error and requested he destroy the email and return any copies i.e. she did not act in a way that was inconsistent with objecting to the adducing of the evidence;
c)There was no evidence the mother had disclosed the evidence to another person; and
d)The provision relating to the adducing of evidence to revive a witness’s memory had no application.
The father also relied upon s 125(2) of the Evidence Act which applies to circumstances involving the commission of fraud, an offence, or abuse of power. The father was unable to produce any evidence to support such a serious allegation.
Finally, the father sought to resist an order for the return of the documents or their destruction by a valiant attempt to distinguish his circumstances from those arising in Expense Reduction Analyst Group Pty Ltd & Ors v Armstrong Strategic Management & Ors[32] where a lawyer was ordered to return or destroy privileged documents provided in error. The father argued that as he was not a lawyer he should not be ordered to return or destroy the documents. There is no sound legal basis for the distinction sought to be made.
[32] (2013) 250 CLR 303 at 319.

Costs - Objections to evidence (including privileged material)

On 20 January 2020, the mother’s lawyers invited the father to withdraw the inadmissible parts of his affidavit and advised him of the increased costs the mother would incur in responding to his affidavit if he did not comply with their request. He was further informed that if he failed to comply, costs on an indemnity basis would be sought against him. The letter very helpfully identified the particular paragraphs of the father’s affidavit to which objection was taken and the reasons for inadmissibility. The father ignored that advice at his peril.
The father’s affidavit material was discursive and verbose and significant portions of his affidavit were inadmissible and struck out.
Although each party generally bears their own costs in this jurisdiction (s 117(1) of the Act) the Court has a broad discretion to make such order as to costs as the Court considers just where there are circumstances that justify it in doing so (s 117(2)).
In the exercise of the discretion to award costs, regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.
Those factors are as follows:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)such other matters as the Court considers relevant.
It is sufficient for one factor in s 117(2A) to be present.[33]
[33] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123.
A court will not lightly make an order for costs to be paid on an indemnity basis. There needs to be some circumstance of an exceptional kind to justify that course.[34]
[34] Kohan and Kohan (1993) FLC 92-340 at 79,614; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
Rule 19.08(3) of the Rules requires the terms of any costs agreement to be disclosed when indemnity costs are sought. This was attended to by the mother on 11 February 2020 when a copy of the costs agreements between the mother and her legal representatives were emailed to the Court and to the father. In addition, and in accordance with my direction, a schedule of costs was provided.
At the conclusion of the trial on 5 February 2020, the father was informed that if he wished to make any submissions relating to the application for costs sought by the mother relating to her objections to his evidence including the father’s attempt to adduce privileged material, he could file short written submissions and/or make oral submissions on the day that judgment on the substantive matters was delivered. No written submissions were provided but the father made oral submissions.
The father opposed any order for costs on the basis that:
a)Each party generally bears their own costs in this jurisdiction;
b)As a self-represented person he did his best and did not intend to be obstructive in any way;
c)He was not wholly unsuccessful as one paragraph that was objected to was not struck out.
In the event costs were awarded against him the father did not cavil with the quantum sought.
The quantum of costs have been particularised as follows:
Counsels fees:
13 January 2020 advice regarding legal professional privilege (1 hr) $800
3 February 2020 submissions and argument – legal professional privilege (1 hr) $800
Total (including GST) $1,760.
Solicitor’s fees:
17 January 2020 perusing affidavit of Mr Darrett and telephone call to client to formulate a reply $1,540
17 January 2020 letter to Mr Peter Batey (summarising contents of affidavit) $600
Total (including GST) $2,200.
In Re Wilcox, Ex parte Venture Industries Pty Ltd[35] the Full Court of the Federal Court per Cooper & Merkel JJ said:
The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur. These and other policy factors have been considered by the courts over a very long period in order to arrive at the principles which govern the undoubted discretion of courts to depart from ordering costs on a party and party basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive).
[35] (1996) 72 FCR 151 at 156 – 157.
The Full Court (per Cooper and Merkel JJ) went on to restate the principles from Colgate-Palmolive as follows:^[36]
(a)the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course;
(b)the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the Court in departing from the usual course;
(c)whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis.
[36] Ibid at 156 – 157.
While the categories of cases in which an indemnity cost order may be awarded are not closed, indemnity costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law”.[37]
[37]Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
The explanatory guide to the Rules provides a useful definition of costs on an “indemnity basis”, namely:^[38]
[A]n entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.
[38]Prantage v Prantage (2013) 49 Fam LR 197 at 200.
Rule 19.18 of the Rules empowers the Court, when awarding costs, to make an order for costs:
a)of a specific amount;
b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
c)to be calculated in accordance with the method stated in the order; or
d)for part of the case, or part of an amount assessed in accordance with Schedule 3.
In considering what specific order should be made, the same rule provides that the Court may consider any of the following factors:
a)the importance, complexity or difficulty of the issues;
b)the reasonableness of each party’s behaviour in the case;
c)the rates ordinarily payable to lawyers in comparable cases;
d)whether a lawyer’s conduct has been improper or unreasonable;
e)the time properly spent on the case, or in complying with pre-action procedures; and
f)expenses properly paid or payable.
The father ignored advice from the mother’s legal representatives prior to the trial as to the grounds upon which much of his affidavit was inadmissible. He was invited to withdraw those parts but declined to do so. Much of the father’s affidavit could best be described as a ‘stream of consciousness’ and he included such irrelevancies as a recipe for chocolate cake.
The mother warned the father that his failure to withdraw the inadmissible parts of his affidavit may have a costs consequence and that she would seek costs on an indemnity basis. Substantial parts of the father’s affidavit were struck out. The mother was put to the expense of considering the father’s inadmissible material and responding to it. Considerable time was then taken in dealing with the objections to evidence which were almost entirely upheld. The father also sought to rely upon privileged material which he accepted had been sent to him in error. His refusal to concede the point and return or destroy the documents involved unnecessary preparation and argument.
The circumstances of this case are exceptional and justify an order for costs on an indemnity basis. The quantum of costs appear to be entirely reasonable and I will order the father to pay the mother’s costs in relation to these matters fixed in the sum of $3,960.

Costs of expert’s report and cancellation fee

A report was obtained in the parenting proceedings from a single expert, Dr BB. The order appointing the single expert on 24 April 2018 provided that the mother should initially pay the expert’s costs with the final issue of costs to be determined at trial.
It is common ground that the mother has paid a total of $29,000 to the expert including a cancellation fee of $6,600 relating to the adjournment of the trial in October 2018.
The father sought to resist sharing in the cost of the single expert. He contends that he cannot afford to make a contribution.
The father has a greater earning capacity than his current income. He also has a credit card from which he can draw down up to $8,100. In addition, on his own admission, he has a capacity to borrow as he has been in employment for over a year and has an unencumbered property to offer as security.
The father will be ordered to reimburse the mother for one half of the cost of the single expert’s fees.

Independent Children’s Lawyer’s Costs

The ICL seeks an order pursuant to s 117(3) of the Act that the mother and father pay the ICL’s costs incurred by Legal Aid New South Wales. The quantum of costs claimed are $16,500 less the sum already paid by the mother of $1,650.
The mother and father oppose any costs order relying in particular upon s 117(4)(b) of the Act which provides that a costs order should not be made in favour of an ICL if a party would suffer hardship.
In addition to the relevant matters in s 117(2A) I also have regard to s 117(5) which provides as follows:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

In the particular circumstances of this case I do not propose to make an order for either party to pay the costs sought by the ICL. The mother has privately funded her legal costs and has already made a contribution to the ICL’s costs. The father will need to borrow money in order to reimburse the mother for the single expert’s costs and to pay a costs order in her favour.

Miscellaneous

The father included in his Amended Response a raft of other provisions as follows:
Third Party Orders - Witnesses and affidavits
38.That Ms Darrett has not been full, frank, and timely in her disclosure about parenting, child support, property and financial matters. ·
39.A finding, with no penalty, that Ms Darrett on the balance of probabilities:
a.knowingly made a false statement on oath during or connection with these proceedings, and that those statements are material to these proceedings; and
b.made a false statement under oath; and
c.made contradictory statements under oath that are irreconcilably in conflict with each other;
d.enduced (sic) another to procure, persuade, induce or otherwise persuade a person to knowingly make a false statement under oath
40.A finding, with no penalty, that Mr EE, and Ms B, on the balance of probabilities:
a.knowingly made a false statement on oath during or connection with these proceedings, and that those statements are material to these proceedings; and
b.made a false statement under oath; and
c.made contradictory statements under oath that are irreconcilably in conflict with each other
Third Party Orders - Other
41.That:
a.the documents returned under subpoena from the following persons were incomplete, and the missing documents were significant and relevant to the case of Mr Darrett, such that an order should be made, at the discretion of Justice Carew, against the persons named in the subpoena, being:
i.The Proper Person, NSW Police Commissioner
ii.The Proper Person, Suburb DD Public School
iii.The Proper Person, Dr M
b.and the persons named above should also refund the subpoena lodgement fee and conduct money to Mr Michael Tiyce and/ or Legal Aid
42.That, at the discretion of Justice Carew, the Reasons for Judgement (sic) in this case be sent to Justice Stevenson; Justice Le Poer Trench; and Judge Monahan
43.That, at the discretion of Justice Carew, consideration be given to writing to the Chief Justice of the Family Court, detailing any concerns held about the process, methodology, and competencies of Dr D to be appointed as a single expert report writer for parenting matters.
44.That, at the discretion of Justice Carew, consideration be given to writing to the Chief Justice of the Family Court, detailing any concerns held about the process, methodology, and competencies of licensed valuer Mr EE to be appointed as a valuation expert.
45.That, at the discretion of Justice Carew, consideration be given to writing to the Clerk, Speaker and Leader of the House of Representatives of the Commonwealth Parliament, and the Clerk, Speaker and Leader of the Senate of the Commonwealth Parliament, regarding:
a.the case management of this matter by the Sydney Case Management Judge,
b.by the Chief Justice of the Family Court of Australia;
c.The personality test requirements under s22(2)(b) of the Family Law Act 1975 and its application to Sydney Case Management Judge, Justice Stevenson, Justice Le Poer Trench, Judge Monahan, Registrar Campbell and the Chief Justice of the Family Court.
46.That, at the discretion of Justice Carew, and after consideration of the legal fees spent by Ms Darrett in these proceedings, and after consideration of the appropriateness of those fees, consideration be given to writing to the legal professional bodies responsible for the legal practitioners representing Ms Darrett, raising any concerns that might be held concerning their conduct, or fees charged, to Ms Darrett for legal representation in this matter since. June 2017, and also potentially since June 2012.
47.That the father be given permission to: make a copy of the emails from and to Ms Darrett that were produced under subpoena from Suburb DD School, and; the affidavit statement of Ms Darrett concerning her version of events surrounding these, and; at the fathers discretion he may provide these emails and a redacted version of the affidavit to the Principal of Suburb DD School, the Principals direct manager, and the NSW Minister of Education (or their delegate).
48.That, with conditions nominated by the court to protect the identity of the children and the parents (such as redaction), the father be allowed to provide a copy of the reasons for judgment from these proceedings, and any other material relied upon by either party to these proceedings, to the following persons or organisations:
a.Any standing committee of the Commonwealth Parliament that the father considers the documents would be relevant for;
b.The Speaker, Clerk, and Leader of the Commonwealth House of Representatives;
c.The Speaker, Clerk and Leader of the Commonwealth Senate
d.at the discretion of the father, any current member of the Commonwealth Parliament.
e.Law Society of NSW
f.NSW Bar Association
g.Australian Valuers Institute
h.NSW Fair Trading
i.Australian Psychological Association
j.Legal Aid
k.The Family Law Section of the Law Council of Australia
l.Australian Association of Social Workers
m.Australian Health Practitioners Regulation Authority
n.Australian Human Rights Commission
No submissions were made by the father in support of any of the above nor was I taken to any evidence said to justify any of the relief sought. The father seemed content to leave the decision to the Court of what if any orders, findings, permissions or referrals are made. I can see no justification or utility in making any order, finding or referral sought by the father. Accordingly, the balance of the father’s Amended Response (as set out above) will be dismissed.

I certify that the preceding one-hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 9 April 2020.

Associate:

Date: 9.04.2020