Dhupam & Keyush

[2008] FamCA 709

FAMILY COURT OF AUSTRALIA

DHUPAM & KEYUSH [2008] FamCA 709

FAMILY LAW – CHILDREN – BEST INTERESTS OF CHILDREN – parents’ lack of communication and trust and in context of allegations of sexual assault against the mother – shared parental responsibility not appropriate – substantial time in children’s best interests – progression to spending extended weekends and half of school holidays with father

FAMILY LAW – CHILD SUPPORT – Orders for child support other than periodic payment sought by mother in addition to child support assessment – parents had agreed on the manner in which the children would be educated – payment for equal shares of the children’s private school fees ordered

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth) ss 117, 123, 124
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
Patsalou & Patsalou (1995) FLC 92-580

APPLICANT: Mr Dhupam

RESPONDENT: Ms Keyush

FILE NUMBER: CA 1684 C of 2007

DATE DELIVERED: 19 August 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11, 12, 14 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tonkin

SOLICITOR FOR THE APPLICANT: Mr Power

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Mr Farrar

Orders

1. The mother, Ms Keyush, have sole parental responsibility in respect of matters relating to the education and medical treatment of the children S, born … February 2002 and G, born … July 2004.

2. I note however that in making the last Order about medical treatment, I do so in the understanding that in an emergency (as determined by a treating medical practitioner) the consent of either parent may not be required.

3. The children live with the mother.

4. The children spend time with their father as follows:

   (a)From each Friday evening in each alternate week until 9am on the following Monday morning.

   (b)On each alternate Wednesday, being the Wednesday prior to the weekend the children will be with their mother from 3pm until the commencement of school, pre-school and/or child-care on Thursday.  If Thursday is not a school, pre-school or child-care day, the children will be returned to their mother at 9am.

   (c)The provisions of Order 3(a) and 3(b) will not apply during school holidays.  For the purposes of these orders, ‘school holidays’ will include the weekend immediately following the end of the school term and the weekend immediately prior to the commencement of the school term.

5. For the purposes of the last mentioned order, the children will be collected by or on behalf of the father from the school, pre-school or child-care as the case may be.  S will be returned by or on behalf of the father to the school or to the mother on the first day of school.  G will be returned by or on behalf of the father to the school, pre-school or child-care or to the mother if there is no school, pre-school or child-care on that day. 

6. Commencing with the next (September/October 2008) school holidays, the children will spend one half of each end of term school holidays with each parent.  Unless otherwise agreed, the first half will be with the father and the second half will be with the mother.  Such periods will commence 9am on the first day after the last day of school term and conclude at 5pm on the day which is nearest the mid-point of the holiday period.  For school holidays of two weeks duration the mid-point will be the middle Saturday.  For school holidays of three weeks duration, the mid-point will be the Wednesday of the middle week.

7. During the December/January school holidays in 2008/2009 and 2009/2010, the children will spend alternate weeks with each parent.  The first week in the 2008/2009 holidays will be with the father.  The first week in the 2009/2010 holidays will be with the mother.  For the years after 2009/2010, the children will spend one half of the end of year school holidays in a block with each of the parents.  In 2010/2011, the first block period will be with the father and will alternate each following year, unless the parents otherwise agree. 

8. The father will pay to the mother 50% of the school fees for G to attend the C pre-school and/or junior school and 50% of the school fees for S and in due course G to attend the C School.  For the purpose of this order, ‘school fees’ includes compulsory tuition fees, any other compulsory fee, charge or levy, cost of uniforms, text books and the cost of music tuition conducted under the auspices of the school. 

9. The matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1684 of 2007

MR DHUPAM

Applicant

And

MS KEYUSH

Respondent

REASONS FOR JUDGMENT

Foreword 

1. These were proceedings between two parents, in relation to their children, S, who is now about six and a half, and G, who has recently turned four.  The orders sought by the mother as of the finalisation of the Less Adversarial Trial included orders about child-care and school fees.  She sought contribution is sought as a lump sum payment in addition to the normal child support assessment. 

2. The children have been living primarily with their mother since separation but have been seeing their father on a regular basis. 

3. When the Less Adversarial Trial (LAT) began, the father was seeking a week about arrangement with half the school holidays.[1]  The mother, in her parenting questionnaire,[2] proposed a continuation of the existing arrangements.  These involved S being with his father from 3:00pm on Friday until 9:00am on Monday in one week and from 3:00pm on the Wednesday until 9:00am on the following Thursday in the other week. 

   [1] Parenting questionnaire filed 20 March 2008.

   [2] Filed 28 February 2008

4. G was, at the beginning of the LAT, spending from 3:00pm Friday until 5:00pm Sunday with his father and from 3:00pm Wednesday until 9:00am Thursday in the other week.  Interim orders were made such that G would spend the same amount of time with the father as S, from the weekend of 22 July 2008. 

5. At the time of the commencement of the finalisation of the LAT, the parties had both changed the orders they sought.  The mother’s minute of orders sought appears at the end of this judgment as Endnote 1.  This sought that she have sole parental responsibility concerning the children’s education and medical treatment, but that otherwise, the parties have equal shared parental responsibility and that the children, together, spend from Friday evening until 9:00am on the following Monday morning and overnight on the Wednesday (as had been previously proposed). Although she sought that the September/ October holidays 2008 should be dealt with somewhat differently, she agreed otherwise that thereafter the children should spend half of the term school holiday periods with each parent. She sought however, that for the December/ January school holiday period, the children would spend alternate weeks with each of their parents. These were to alternate from year to year so (presumably) Christmas would fall with a different parent in each year.[3]  She sought that the children be put on the Airport Watch list and sought that the father pay 50% of the day-care fees for G and 60% of the school fees for G and S at the C School pre-school or junior school and at C School respectively.

   [3] It should be noted that this was not a matter in which Christmas was asserted to have any particular significance for either parent.

6. For his part, the father sought orders (which appear at End Note 2) which required no allocation of parental responsibility relying on s 61C of the Family Law Act that each of the parents has parental responsibility unless the Court otherwise orders.  He also sought that S would spend time with him on each alternate weeks from after school on Thursday until the commencement of school on the following Monday (adding an extra day to existing arrangement) and that G spend time with his father from 10:00am on Thursday until the following Monday with a pick up at the Childcare Centre.

7. He then sought that the school holidays would be divided equally between the parties and that in 2008, the Christmas holidays would be divided on the basis that for the first two weeks the children would be with him and spend the balance with the mother.  When G turns five, (which is in July 2009), the proposal is that S would spend time with his father from after school on Wednesday until the commencement of school on the following Monday and that G would spend from 10:00am on the Wednesday until the commencement of pre-school on the following Monday.  For the Christmas school holidays in 2009, the children would spend the last two weeks of the holidays with their father and the rest of the time with their mother.

8. He then sought that as from the beginning of the 2010 academic year (when both children would be at school), the children spend each alternate week from after school on Wednesday until the following Monday and half of all school holidays including the Christmas school holidays, with the father.

9. The father’s proposal therefore was that at least in the short term, he would have about the same time with the children as he presently has except that it would be in one block rather than in an extended weekend followed by one night in the other week.

10. Each of the parties filed an affidavit and relied upon other affidavits previously filed by them in these proceedings.

11. Initially the father sought to rely upon a number of additional affidavits which were not filed in accordance with directions given during the course of the LAT.  In the end however, he relied upon the affidavit of Mr S with certain parts of the affidavit excised after objections and on the affidavit of Mr V who did not give any oral evidence.

12. Ms D was the Family Consultant who had prepared both an assessment of issues between the parties at the beginning of the LAT and a formal family report during May of this year.

background

1. It is necessary that the parties’ relationship be put into some context.  The parties first met in September 2000 and apparently married later the same year. 

2. S was born in February 2002 in Melbourne and the parties separated in the following year for a period of some months.  In 2004, they moved to Canberra and both of them worked, at least in part.  The father has for practical purposes, subject to the comments made hereafter, worked full-time.  G was born in July 2004 and the mother resumed work later in that year. 

3. Subsequently the parties lived in New South Wales for a time before returning to Canberra in July 2005.  In the beginning of 2006, the father spent some time being the children’s primary carer while the mother finished her studies.  The parties are not in agreement about whether the father did this to facilitate the mother’s study or not.  In April/May 2006, the parties looked to the possibility of the father’s moving to Newcastle.  The agreement of both parties to this arrangement is in dispute and for the purposes of this judgment, irrelevant. 

4. The mother asserts the parties separated when the father went to Newcastle on 21 May 2006.  The mother remained in Canberra working full-time and the children were in full-time care. 

5. Some time in about this period the maternal grandmother moved into the home of the parties and according to the father, on 24 June 2006 he moved out.  Domestic Violence Orders were filed by the mother’s father, the mother and her mother from time to time and I will return to these in due course.  A Domestic Violence Order continues to exist on the application of the mother. 

6. The parties seem to be agreed that there was a reconciliation on 21 July 2006 which it is asserted persisted until February 2007.  In this period, a place was offered for S at a private school in Newcastle.  Each of the partes was agreed that the children should attend what the father describes as ‘elite private schools.’  The parties, notwithstanding their ‘reconciliation,’ continued to argue and in September 2006 the mother advised the father that she had changed her mind and would not relocate to Newcastle.  The father during this period until later in the year continued to commute between Canberra and Newcastle and have significant numbers of overnight stays with the children in Canberra.  In January 2007 the father resigned from his position in Newcastle and returned to Canberra.  On 2 February 2007 the parties separated and in April 2007 the father acquired/rented a townhouse in N.  The circumstances of the acquisition and the father’s involvement in the provision of funds for its purchase and the circumstances of its rental are vague.  What is clear is that he enjoys relatively favourable terms and if he is unable to pay the rent at any time, it is not pursued. 

7. On 16 April 2007 after an incident in which the parties were in dispute about the father’s removing S, the mother asserts that the father sexually assaulted her. This was a matter of extensive cross-examination of the father and virtually no cross-examination of the mother.  The father does not deny that a sexual event occurred but maintains that it was consensual.  The mother denies this. 

8. The parties attended some functions with the children and towards the end of June the mother says the parties were reconciled.  This does not appear to have meant the parties were living together but the mother did visit the father’s home in N, according to the father.  The parties attended mediation but remained substantially separated. 

9. The mother claims that again on 2 August 2007 the father sexually assaulted her.  Again the father in his affidavit asserted that the incident was consensual.  The mother asserts that she did not consent.  The parties subsequently attended mediation on 13 August and an interim Domestic Violence Order was taken out by the mother.  That became a final order for two years on 10 September 2007. 

10. The parties by this time had engaged in proceedings in the Federal Magistrates Court and interim orders were made by FM Brewster on 22 November 2007.  The matter was subsequently transferred to the Family Court of Australia where on 16 January 2008 orders were made for the parties to participate in the child responsive program.  The parties came to the first day of the Less Adversarial Trial on 1 April 2008 after a number of continuations the first day of the finalisation began on 11 August 2008. 

parental responsibility

1. The parties have different positions about what should happen in relation to parental responsibility.  The mother seeks that she have sole parental responsibility in relation to education and medical matters.  Otherwise she agrees the parties should share parental responsibility equally. 

2. The father to some extent recognising the difficulties the parties have had in the past was not seeking equal shared parental responsibility but rather that the default position under s61C of the Family Law Act 1975 that each parent has parental responsibility should continue to apply.

3. Neither of the positions precisely represents what the parties want.  The mother in effect seeks to have the power to make decisions about education and medical matters but not to do so without consultation with the father.  The father appears to fear that if the mother has the ultimate right to make decisions, she will not consult.  He expresses faith in her ability to make proper decisions about medical issues in relation to the children but expresses concern about what would happen in the case of an emergency. 

4. The relevant sections of the Act are set out in End Note 3. 

5. Before amendments to the Act took effect from 1 July 2006, it was open to the Court to make a determination about specific issues.  This in effect permitted the Court to determine discrete matters between the parties when they were unable to resolve them themselves. 

6. The amendments included no such specific provisions and appear instead to see the question of resolving matters such as education and medical treatment as being a function of parental responsibility. 

7. This does not precisely define the issue between the parties.  The mother asserts that it is important the father be involved in decisions about education and equally asserts that he should have a part to play in determinations about where the children should go to school.  She however maintains that agreement may not be possible and in such circumstances she seeks to have what amounts to the casting vote.

8. The father is somewhat less optimistic about the opportunities for success in consultation.  He holds strong opinions and my impression is that he generally wants to get his own way.  So far as I can determine, what he thinks should happen if there is an issue between the parties is that they should attend some formalised dispute resolution process.  He mentioned that Relationships Australia would be appropriate.

9. It is obviously better for all parties (parents) if they do not have to run off to court every time there is a dispute between them.  It would be better if they could resolve the dispute themselves.  If they cannot resolve it, it is appropriate that they consider mediation, except in circumstances where mediation is unlikely to produce a satisfactory result.  It is commonly agreed among those conducting mediation that a significant imbalance in the power of negotiating parties will not permit a satisfactory solution.  The literature sometimes record that parties sometimes seek mediation because they believe they can overbear the other party in the course of that mediation.  I am not suggesting this is the father’s intention and I accept that he is genuine in seeking to find some way of participating in a meaningful way in major issues relating to the children. 

10. At the same time, notwithstanding the interesting submission from Ms Tonkin on behalf of the father that the parties had not many issues in dispute, there remain two issues which are certainly in dispute or have been in the past on different occasions: these are education and medical matters. 

11. The dispute about which school S and which pre-school G should attend seems somewhat, on the part of the father, to be centred on money issues.  He also asserts a change to the C schools should not occur at this point because existing arrangements are working satisfactorily and should not be changed.

12. This neatly illustrates the nature of the difficulty in this matter.  The parents express different views about where the children should go to school or pre-school next year.  The father asserts, (with some validity one might think), that the existing arrangements are working well so they should not arbitrarily be changed.  The mother contends that change is going to occur at some point if their primary objective of ‘elite private schooling’ is to be met. 

13. How can this conflict be resolved? If the parties were communicating effectively, sharing goals, co-operating and trusting each other, one would hope that the issue would be resolved in an intact family by discussion or compromise. 

14. It is possible that the issue might also be resolved through dispute resolution processes. 

15. In this case the former, on the present attitudes of the parties, is impossible.  The latter may not effectively resolve the issues if mediation is not an effective way for the parties to resolve differences between them.  There is no indication that it is. 

16. This suggests that the only way in which the matters might be resolved is if one parent has the right to determine what should be the ultimate outcome.  This does not relieve either parent from the necessity to consult.  Consultation in this context must mean genuine consultation and a persistent refusal to engage in meaningful consultation would inevitably result in further litigation.  However, in my opinion this is an issue which ought to be resolved outside a dispute resolution process and cannot be resolved within a normal parental negotiation context and hence must be resolved by one parent’s having the final say - and in this context that should be the mother.  This is because she is the primary carer for the children and I am satisfied that what she is seeking is not illogical or unreasonable but broadly in conformity with what the parties previously agreed.

1. I turn to the question of medical issues.  Here we have apparently contradictory positions.  The father believes the mother makes good medical decisions (and education decisions) about the children[4] and the mother says for her part when there was a medical emergency, she was more than happy for him to participate and invited him to do so.  Neither party disputes that in an emergency the other would take whatever were appropriate steps to safeguard the children’s safety and well-being. 

   [4] Transcript of proceedings 27 May 2008, father’s evidence, page 24

2. In summary, we have a situation where the father believes the mother makes good decisions.  The mother has sought in the past to involve the father in the treatment and/or medical procedures for the children.  Neither party seeks that the other be excluded from making decisions about emergencies or urgent matters and yet, each feels that this is an important issue and that it ought or ought not to provide one parent with sole parental responsibility. 

3. Again, one would hope that where communication between parties were good, they shared goals for the children, they were willing to cooperate and where they trusted each other, any issues of this sort would be quickly and responsibly negotiated and agreed. 

4. At least three of the four matters I set out above are not present for these parties (I accept that they share the goal that the children should be properly cared for medically). 

5. Even more than questions of education, medical issues are not capable of easy mediation or other dispute resolution. 

6. Again, in this context, given the father’s acceptance of the mother’s general ability to make proper decisions about medical matters for the children and given the mother’s history of involving the father, if other solutions are not available and one parent must make the decision, it seems appropriate to me that it should be the mother.  Again, this must be in the context that although the decision remains with her, consultation and proper consultation is appropriate and necessary.

7. By way of conclusion on this issue, it seems to me that while the legislation creates a presumption of equal shared parental responsibility such an arrangement is not always possible, as the legislation itself recognises.[5]  The presumption does not apply if there are reasonable grounds to believe that a parent has agreed in abuse of the child or in family violence.  No one is suggesting there has been any abuse of the children in this matter.  Family violence has been a contentious issue to which I will need to return in due course, however, the legislation also provides in s61DA(4) that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for them. 

   [5] s61DA

8. In this case, for the reasons set out above, it seems to me that the presumption is rebutted.  I am reinforced in this view by the fact that the father does not seek equal shared parental responsibility.

9. If there is to be equal shared parental responsibility or even shared parental responsibility, s65DAC(2) requires that the decisions about a long-term issue in relation to the child are to be made jointly by the parents.  For that to happen, it is crucial that the parents should share the four factors I have outlined above. 

10. It is not appropriate for me to determine whether these factors are a sine qua non to sharing of parental responsibility either equally, or otherwise, but it seems to me at least in the circumstances of this case that the parties attitudes do not at present demonstrate factors which would permit an effective sharing.

11. This is not to deny that they have in the past agreed about a number of factors.  However the fact that they come before the court in disagreement about these two is in itself sufficient to indicate that the sharing of parental responsibility is something for which they are not at present equipped. 

12. Curiously therefore, it seems to me that the mother’s order seeking equal shared parental responsibility except for medical and education is not appropriate.  It is appropriate that she should have sole parental responsibility in relation to those two issues.  If I make no order otherwise, the previously applying and in effect default provisions of the Act would apply, as the father seeks (s 61C, namely that each parent will retain parental responsibility for the children which will permit them in the future to agree if they can). 

13. I am conscious, (although in my opinion it is unlikely to have any practical effect except in some cases of emergency,) that the mother’s sole parental responsibility for medical matters may be a factor preventing the father from taking what action he thought would be appropriate.  Both parties made submissions without any evidence in relation to this matter.  Ms Tonkin submitted this would be an impediment to the children’s proper care.  Mr Millar for the mother submitted that in cases of emergency parental consent in not required in any event.  Mr Millar also submitted that the parties will possibly be in dispute about what constituted an ‘emergency’.  Accordingly, creating an exception to parental responsibility in emergencies would be harmful for the children.

14. On balance I accept the submissions of Mr Millar in this regard, although I am not assisted by any evidence in relation to standard medical practice.  I accept that this Court has in the past in the exercise of its parens patriae jurisdiction acknowledged that some medical procedures, having to be undertaken urgently, do not require parental consent, even if they might otherwise require that consent or in some extreme circumstances the approval of this Court. 

15. Accordingly, while I would hope that the present good practices of the parties continue and that they will cooperate and consult on these matters, it is appropriate to leave sole parental responsibility without qualification.  In doing so, I will however note in the order that emergency procedures may in some cases proceed without the approval of either parent if the treating medical practitioner is of the view that the child’s safety or life may depend upon the treatment. 

parenting orders

1. In the short-term, or in the medium-term, the parties are, in substance, agreed about the outline of the arrangements for the children.  It is accepted by both mother and father that the children will live primarily with their mother for the next couple of years.  There is a dispute about the amount of time the father will spend with the children in the medium-term.  In the short-term the quantum of time is agreed.[6]  The father seeks an inevitable and inexorable progression towards a time where the children spend half their time with him and half with their mother. 

   [6] With one small exception for the next school holidays

2. I am aware that the legislation requires[7] that I should make orders that would be least likely to lead to the institution of proceedings in relation to the children.  This section has been included in the Family Law Act in various forms since its introduction in 1975.  However the application of it in circumstances where children’s needs are evolving and parent’s circumstances are changing is always difficult. 

   [7] s 60CC(3)(l)

3. Any judge making determinations about children and their parents hopes that the parents will, as a result of the orders and the effluxion of time and the realisation of the importance of the primacy of the children’s interests, develop cooperative and effective means of parenting notwithstanding that they are not together.  However, in some cases this will never be possible.  In some cases, it is appropriate to make orders which provide in effect a trial opportunity for the parties to demonstrate that they can work towards a common goal for the children.  Neither party seeks such an arrangement at this point and each seeks in some respect a progression towards the children’s spending more time with their father than they currently do. 

4. However, the father’s orders in effect seek that I assume that in some identifiable time in the future the parents will have moved to a point where they can cooperate adequately and appropriately to enable what would amount to equal shared parenting time for the children.  This is an assumption I cannot possibly make on the evidence before me.

5. In 2010, the parties will either agree about arrangements for the children which are different from the orders I make - or they will not.  If I were to project a new arrangement as from that point involving equal shared parental responsibility, it would be on the basis that my assumption was the parties would overcome their current differences.  I cannot make that assumption.  It is my hope that will be so but it is not my expectation. 

6. If I were to mandate different arrangements for that time as the father suggests I should, it may well be that the parties will not agree on those projected arrangements when they are due to come into effect.  In such a case there would almost inevitably be further proceedings. 

7. I accept that one reason for the making of such orders would be that thereby the court would be expressing an opinion that such would be a desirable arrangement.  It would also create a ‘default template’ for that arrangement.  It would in effect create a legal shadow in which the parties will negotiate. 

8. I recognise that in some cases this is appropriate and beneficial but in this case, there are no signs that the parties will be able to ameliorate their relationship or co-operate.  The default position in a couple of years should not be for equal shared parental responsibility. 

9. I hope the parties prove me wrong.  If they do, the court can, on their application (quickly and without much cost or formality) implement their sharing arrangements with orders made by consent varying the orders I make today.

10. Any orders I make must be determined in the best interests of the children and those are to be determined by reference to the matters set out in s 60CC. 

primary and additional considerations

1. While there is not much difference between what the parties are seeking in the short term and those which would result from the comments I have made above, there is no basis for me to make orders beyond those which will apply when the children attend school. 

2. I am obliged to take account of the factors the Act sets out.

3. The primary considerations under s 60CC(2) include the benefit to the children of having a meaningful relationship with both of their parents.  This is not a matter of dispute between the parties and it is to their credit notwithstanding the difficulty in their own relationship that they recognise the importance of the relationship of the children with each other. 

4. Secondly, the Act provides that the children must be protected from physical or psychological harm or being exposed to abuse, neglect or family violence.  Family violence has been a vexed issue between the parties.  I have indicated above in the background that the mother has taken out a Domestic Violence Order against the father and that this is still current.  She expresses fear of the father and does not wish to be placed in a situation where she is obliged to deal with him on a direct basis.  She claimed that the father ‘has violated [her] home, [her] computer and [her] body.’[8]  It is not asserted that the children have been exposed directly to the violence between their parents but they have certainly been exposed to the conflict between their parents.  If I were to find that there had been family violence, it does not follow that the children’s best interests would be served by orders not permitting them to spend time with their father, either as he seeks or as the mother seeks.  The wording of the section is ‘exposed to.’  Under present circumstances, it is unlikely that the children will be exposed to any form of family violence as the parties have arranged their affairs in a way that they have little opportunity for direct interpersonal contact. 

   [8] Transcript of proceedings 1 April 2008, mother’s evidence, page 20

5. At the same time, although each of the parents has to some extent expressed profoundly uncomplimentary views about the other parent (and in the case of the father, offensive and inappropriate comments in his e-mails and text messages), I am satisfied on the evidence of both of the parties that they have at least an element of trust that neither would consciously expose the children to physical or psychological harm.

6. In such circumstances, the children can continue to have a meaningful relationship with both parents and can do so free from the concerns expressed in s 60CC(2)(b). 

7. The children are not of an age where they can express any concluded views about where they would want to live or about either parent.  It seems they are happy in the company of both parents - a fact acknowledged by both parties.

8. The children appear to have a good relationship with each of the parents, although they are primarily associated with their mother.  They also have relationships with their respective grandparents and other relatives on each side.  Regrettably, the dispute between the parents has in part resulted in a larger (almost) family feud which has not operated to the benefit of the children. 

9. I have no evidence from either grandmother about the benefit that the two children would derive from being with either grandparent but a review of the evidence in the case suggests that the children apparently get on well with all of their extended family and are not in any way disadvantaged by time that they might spend with them. 

10. This is an interesting question because the father has used his mother and his siblings from time to time to collect the children and drive them to his place of work, which at the time was on the South Coast of NSW.  The mother seeks that the father in fact be the one to pick the children up but did not when she was under cross-examination, suggest that if he were unable to do so, that would prevent him from spending time with them.  Mr Millar rejected my suggestion that her approach to this matter might be somewhat (ironically) paternalistic.  The mother may believe it appropriate that the time the children are to spend time with the father be time they do spend with the father himself.  The father was somewhat deceptively at pains to point out that they were ‘directly’ in his care when clearly they were not.  However, it seems to me that it would only be productive of further dispute if I were to make an order that in effect required the father alone to pick the children up and return them on each occasion.  The relationship the children have with their extended family would suggest that while they should see that their primary relationship is with their father, if his family has to be involved for practical reasons, then this is not going to operate to the children’s disadvantage.

11. Each of the parents expressed a willingness to encourage a close and continuing relationship between the children and the other parent.  This may be limited in practice by the factors that I have set out above. 

12. The arrangements in the orders that I make are not going to substantially change the children’s current circumstances, nor by the time this matter came on for hearing did either parent seek that they should.  In which case the concerns expressed in s 60CC(3)(d) are not directly relevant.

13. There have been issues about handover of the children and these would to some extent be ameliorated if I made the orders sought by the father regarding time spent with the children. 

14. His change from seeking a night in the alternate week to a block period with him would perhaps enable him to spend a little more time involved in the children’s schooling but has the disadvantage of separating the children from their mother for a longer period and in fact from their father for a longer period.  The Family Consultant was not prepared to endorse this arrangement.  Leaving aside the contingencies if either parent works (which have not operated to the children’s significant disadvantage in the past) and the availability of various members of the extended family, it seems to me there are no particular difficulties associated with the arrangements that are proposed by either parent.

15. The capacity of each other parents to provide for the children’s emotional and intellectual needs is slightly more problematic. 

16. I formed the impression that the father is significantly lacking in insight about some of his attitudes and actions.  I give as one illustration his response in cross-examination about a highly offensive text message sent to the mother.[9]  The father, when questioned as to whether he thought it helpful to the children that he should be expressing this attitude towards the children’s mother, pointed to a phrase in the e-mail in which he expressed a love for his children and said something to the effect of “see how much I love my children.”

    [9] Affidavit sworn by the mother on 4 October 2007, Annexure I

17. On the other hand, I found the mother’s evidence to be believable and compelling about the children and her concerns about their welfare.  I listened to the evidence she gave about the children’s schooling and the reasons she advanced for the choices she proposed to make.  At no point did I discern that she was seeking to do something other than for the benefit of the children and her attitudes as expressed were consistent with her understanding and sensitivity towards the children’s needs.  Her responses in general to the husband’s, in many cases, inflammatory, text messages, were reasonable as well.  In particular I draw attention to her willingness to involve the father in the processes relating to S’s medical procedure in May of this year.  In contrast, the father’s response to this was that if it was difficult, he would simply go away.  He in fact absented himself from Canberra for this period.  This decision was pragmatic and possibly logical in one sense, but demonstrated that he was totally without an understanding of the needs and sensitivities of the child involved. 

18. These matters reinforce that the children should at least at present live primarily with their mother and confirm that they should not be separated from her for long periods.  They are not such, however, as to preclude children from spending time with their father - as both parents substantially agree they should.

19. Although the children come from parents who have a heritage and cultural background from the subcontinent, neither suggested this was a distinguishing factor between them and both proposed that the children have some involvement and upbringing and exposure to the slightly differing cultural backgrounds of each of the parents.  The orders that I make will provide the parents with the opportunity to involve the children to the extent they believe appropriate in their slightly differing cultures.

20. Section 60CC (3)(j) and (k) require that I take account of any family violence and any family violence order.  Dealing with the latter, it is sufficient to say the orders that presently exist have been made without admission and hence do not constitute an issue estoppel in relation to questions of violence asserted to have been committed by the husband. 

21. I note in this context that this consideration is perhaps different from the primary consideration in s 60CC(2)(b).[10]  

    [10]  “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

22. Whether any family violence has occurred is in itself a factor in determining what is in the best interests of the children as opposed to the provision that they not be exposed to family violence.  This is logical because if a parent has engaged in family violence, it is possible that parent will provide inappropriate role modelling for the children (see generally Patsalou & Patsalou (1995) FLC 92-580). This is not pressed as an issue in this matter in those terms.

1. It is not suggested the father would model violence to the children even if I were to determine that he had engaged in it in the past.  The fact that a parent is prepared to engage in violence towards the other parent is prescribed by the Act as a relevant fact.  This is properly so, because in such circumstances that parent has imposed his or her will on the other parent and has engaged in using superior strength or force to cause that person to comply. 

2. In this regard, the alleged sexual assaults on the mother assume a degree of importance because they quintessentially deal with those matters. 

3. The mother asserts that she did not consent. The father in the sworn material asserts that the act was consensual. Curiously, counsel for the father chose not to cross-examine the mother about these matters hence her views were not the subject of testing. In contradistinction, the mother’s counsel spent some time on this matter with the father, although he did not budge one jot from his sworn evidence. I accept that counsel for the father decided that it was unnecessary to traverse the matter further because of the need to be satisfied in accordance with s 140 of the Evidence Act 1995 (Cth). That section (which exemplifies the principles in Briginshaw v Briginshaw (1938) 60 CLR 336) provides that in a determination of such matters in civil proceedings, a court should be convinced that the act occurred.

4. Having listened to the evidence of the mother, I have little doubt that she did not consent to the actions of the father.  This is so, notwithstanding the apparent reconciliation and contact between the parties relatively soon thereafter.  I accept her evidence on this matter and given that she was not tested about it, in my opinion I am entitled to do so.

5. Equally the evidence of the father was unwavering notwithstanding cross-examination and it is consistent with his personality as I am able to observe it in Court and through his evidence, the husband believed the wife was consenting.

6. Given the wife’s graphic description, particularly of the second event where she covered her eyes during the process, if in fact it were the husband’s view that the wife consented, this would be illustrative of his extraordinary insensitivity to the situation.

7. It seems probable to me - to the extent that is required under the Evidence Act (and under the Briginshaw ‘test’) that the wife did not consent.  If I were to be asked to determine whether the husband had some form of sexual contact with the mother without her consent and that he knew it was without her consent, I could not so find. 

8. I am also prepared to hold from a consideration of all of the evidence and the facts I have set out above, that if in fact the husband did believe the wife had consented then he was illustrating an insensitivity to the wife that is adverse to his ability as a parent. 

9. I can however determine in this matter that under no circumstances is there likely to be any recurrence of such actions.  The wife’s attitude to the husband and her fear of him is in the circumstances is explicable by her lack of consent and the finding I have made in relation to it above. 

10. That at least has the effect that it is improbable the parties will ever be in a situation where such an event is likely to occur again.  Indeed they are unlikely to be in a situation where they would potentially come into any physical or other contact. 

11. I remain concerned about the father’s abuse in his text messages in the past.  This also represents on his part a total lack of control and an inability to ensure that he will put aside his personal feelings for the benefit of the children.  The mother also alleged that the father had hacked in to her email account, using an alter ego.  I am unable to find positively that he did so.  While I express sympathy for the mother, the fact that she now ceases to operate an email account removes the possibility of this reoccurring. 

12. Again, these are matters which in the orders projected by the parties will not have an effect in the short-term and reinforce the view that I have expressed above that I should not make an order for any form of equal shared parental responsibility at this point. 

13. Before I turn to consideration of the child support application, I address the mother’s request that the children be placed on the Airport Watch List.  No evidence was adduced to provide a reason for my being asked to make an order restraining the parents from removing the children from Australia.  The order is opposed.  I do not believe it is appropriate to make such an order without appropriate evidentiary support of intent or inclination. 

child support

1. To some extent the wife’s application about child support was ‘late breaking news’ which may have given rise to an application on the part of the father that the proceedings be adjourned.  This was not Ms Tonkin’s submission on behalf of the father, but she did submit that if I was not to reject the application at this point the appropriate procedure would be for the mother to make a departure application under the Child Support (Assessment) Act 1989 and if necessary follow the normal appeal procedures. 

2. I do not doubt that I have jurisdiction to entertain this application. Section 116(1)(b) of the Child Support (Assessment) Act 1989 provides that an application under Division 4 may be made: [if]“both of the following apply:

   (i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; …

3. I have the matter before me and it seems to me that if I have the relevant evidence – and no one is seeking to have an opportunity to place other evidence before me – that it would be in the interests of both parents for me to make an order in relation to the application. This would provide me with the jurisdiction to deal with the matter under Division 4 of the Act which essentially relates to departures. This was the fallback position expressed by Mr Millar. In fact he suggests that the section I have quoted above would be applicable to an application under s 123 and s 124 of the Act, which fall under a different Division. Given the limitations of the wording in s116 I do not believe this section gives the Court jurisdiction to deal with a matter under ss 123 and 124.

4. Nevertheless, s 123 does not prescribe that an application may only be made for the payment of child support other than in the form of periodic amounts in circumstances where a departure application and the appeal provisions there from have been exhausted. Section 123(2) provides that an application may be made under s 123 if an administrative assessment is in force (which it is) and may be made by a carer entitled to child support (which it is). Then s 123 goes on to provide that in hearing an application, the court must determine any pending application under Division 3 or Division 4 (Departure Orders) of the Act. There are no such applications pending.

5. Given the broad-ranging nature of the sorts of order that may be made under

   
   

   s 124, a conclusion that this could be made in effect in parallel with departure proceedings is a little odd.  However, the statutory proscription against dealing with an application under s 123 and 124 until proceedings for departure have been otherwise determined provides an answer to that apparent contradiction. 

6. Mr Millar based his submissions primarily on ss 123 and 124 but said there were nevertheless grounds for departure under s 116.

7. I deal with the lump sum (s 123 application) first.

8. A plain reading of s 123(1)(a) may suggest that what the legislature had in mind was that an application under this section should be made if there is to be a replacement of the periodic child support by some other form of order (typically, one would think, a lump sum payment).  However a careful consideration of the legislative schema makes it clear that the court has the power to order (and in fact must prescribe if it does so) that any order for lump sum payment is or may be credited against an amount payable under a liability under the administrative assessment (see s 123A). 

9. Section 127 of the Act provides about how the Registrar will deal with assessment issues in the future as a result of any order under s 123. 

10. None of the sections, in my opinion, is capable of construction on the basis that it is only in circumstances where a lump sum is to be credited against an existing assessment that a lump sum payment may be made.  Accordingly, if the circumstances justify my doing so, it would be open to me under ss 123 and 124 to make an order for a payment of a lump sum (as sought in this case for school fees and child-care fees) in addition to the administrative assessment.

11. This makes sense because of the prescriptions that administrative departure applications must be dealt with first.  Accordingly a court being asked to consider a lump sum payment would have before it a concluded process as to the amount that would be ordinarily payable by the liable parent under the assessment procedures.

12. In determining what order if any I should make, I must be satisfied that it would be just and equitable as regards the child and each of the parents and otherwise proper to make an order in the form sought.[11]  I must have regard to any administrative assessment in force in relation to a child, any departure determination, any departure orders and whether the mother in this case is in receipt of an income-tested pension. [12]  

    [11] Child Support (Assessment) Act s 124(1)(b)(i)

    [12] Child Support (Assessment) Act s 124(1)(b)(ii)

13. I am obliged to take into account in determining whether it would be just and equitable to make the orders sought, the matters set out in ss 117(4), (6), (7), (7A) and (8).  I am further entitled under s 124(3A) to determine that the parents’ earning capacity is greater than is reflected in his or her income for the purposes of this Act.  I am satisfied as is required in s 117(7B) but these sections have no application to the father and accordingly it is his income that I would need to take into account rather than his capacity to earn income.

14. I am also obliged to consider matters under s 117(5) in deciding whether it would be otherwise proper to make an order under s 124(1).  That section provides that I am obliged to take account of the duty of a parent to maintain a child and the effect that the order I would propose to make on the entitlement of the children or the mother in this case to an income-tested pension, allowance or benefit or the rate of any such pension, allowance or benefit.  In this case it is not suggested that the mother either needs or is entitled to any such benefit and her capacity to continue to earn would preclude such an entitlement arising. 

15. I should add here that I am somewhat hampered in my consideration of these matters by the fact hat neither parent has supplied financial information as would ordinarily be required in such an application through a financial statement. 

16. Nevertheless if I am proceeding under s 124, certain relevant considerations arise.  The first is that the administrative assessment which to some extent takes account of those factors is already in existence.  Exhibit M2 is the child support assessment 1 July 2008 – 20 Dec 2008.  That provides that the father is to pay an annual child support amount of $7,882. 

17. The questions arising for determination by me is whether in the circumstances I have outlined it is appropriate that the father should be obliged to otherwise contribute to the educational and child-care expenses for the children.  The Act prescribes that I am to take account of certain matters which would ordinarily be taken into account in determining whether the departure application would be just and equitable.  These include s 117(4) which is set out in End Note 4.  There is no difficulty on the part of either parent about the acceptance of their obligation to maintain their children and provide for their proper needs.  It is common ground that the children have no income or earning capacity. 

18. More difficult to ascertain is the income, property and financial resources and earning capacity of each of the parents.  However, Mr Millar in the course of his cross-examination of the father, produced records which indicate that his income in this coming year will be substantially more than the amount shown as his ‘adjusted taxable income’ in Exhibit M2.  The father made no clear admission as to the level of his projected income.  An order for payment of 50% or 60% of school fees, would be about $10,000-$12,000 a year for the two boys, at pre-school and in the junior school.  Whatever may be the father’s income, it seems from the records provided and I accept on the evidence before me that his income in this year so far and hence for the rest of the year and projected into the future would be not less than $20,000 more than the amount on which his child support assessment has been calculated.  Allowing for the highest tax rate that would provide sufficient funds to pay for the education in accordance with the orders sought. 

19. The mother’s income from the Exhibit M2 is about $80,000 although her evidence would suggest that she receives less than that.  I have no evidence from either parent about the extent of their commitments but I note that the mother is willing to accept at least 40% of the cost of the children’s education in accordance with her application.  I accept that because she makes such an application, she has at least that capacity. 

20. In regard to the direct or indirect cost of the mother providing care for the children, I make comments in relation to s 117(8), below.

21. It was not suggested on behalf of the father that there would be hardship caused to him if he were obliged to make such a payment.  I indicated above that I felt he was unwilling to make the payment, but that is a different question from hardship. 

22. It is significant that in accordance with s 117(6) I can have regard to the manner in which the children are being and in which the parents expected the children to be cared for, educated or trained.  In this matter there is no doubt that both parents made a commitment to the goal of having the children educated at an ‘elite private school.’  The father appears to have modified his intentions in this regard but I do not accept that he has done so convincingly (from my point of view at least).  It appeared to me that his modification of his expectations from ‘elite private school’ to ‘elite school’ was to fit in with his desire that the children should attend N Primary School rather than to indicate any change in his overall attitude.  Indeed, he went on to indicate that he felt that it was appropriate that the children should attend a school such as C School in the future.  His reasons for doing so were (unattributably) money but also the fact that a change would not be of benefit at this point given that S at least was progressing very well at N Primary School. 

23. Given the parents’ joint commitment to an ‘elite private school’, some change of school at some point will be required.  There is no evidence, as opposed to conjecture, that the change would be in any way detrimental.  I do not accept this as a qualification. 

24. Section 117(7) requires that I disregard any income that is capable of being derived by the children.  They do not derive any such income.  I must also disregard the income of any person who does not have a duty to maintain the children.  There is no such person.  I must also disregard the entitlement of either of the children to an income-tested pension.  There is no such entitlement. 

25. Section 117(7A) requires that I should have regard to the capacity of the parents to derive income but as I indicated above, s 117(7B) provides that this is really related to someone not working rather than someone working.  For the reasons I have indicated above, in the case of the father, this is not a relevant determination.

26. Section 117(8) requires that I take account of the income and earning capacity foregone by the carer in providing that care.  This may have been a basis upon which I might have proceeded if I had more satisfactory evidence but would operate in favour of the mother and not in favour of the father.  I do not base any determination on this ground although it seems likely that the mother’s capacity to earn has been to some extent reduced by the time she has to spend in the care of the children.

27. I have already made mention of the fact that any order I make would be ‘proper’ in accordance with the understanding of that term under s 117(5). 

28. In summary, although the father expressed some incredulity about his additional income the records supported the fact that his gross income would certainly include be enough to pay one half the school fees and the child-care or junior school fees.  He gave no evidence in reply to establish additional commitments to nullify the additional income or explain why the records produced may not have been accurate. 

29. In addition, the father’s rental arrangement seems to be favourable to him.  The arrangement about his accommodation is vague almost to the point of it being evasive.  He apparently provided money but there is no loan account.  It may be that there is an implied for constructive trust in his favour but I have no evidence to make such a determination.  Whatever may be the circumstances, they are obviously more favourable for him than they would be for a tenant in commercial circumstances. 

30. Both parents were agreed on the standard of education required by the children and I have already commented about the qualifications placed on those expectations by the father and my analysis of them.  In those circumstances it seems to me that I could reasonably order that the father pay one half of the relevant expenses. 

31. Without any understanding of the respective commitments of the parties, it is difficult for me to make a differential determination sought by the mother, notwithstanding that the percentage involved is relatively small.  Accordingly, as she has not sought to provide adequate evidence to justify that differential it seems to me I could and should make the order on the basis that each of the parents share equally in the education expenses of the children. 

Departure Order

1. Such a determination does not require me to do so but I will look at whether or not I might make a departure order under Division 4 of the Child Support (Assessment) Act 1989. 

2. It follows however from an examination of the reasons I have given above that if I were to consider the matter under that division it would be appropriate for me to come to a similar conclusion, leaving intact the existing assessment as a primary basis for contribution.  In this regard I draw attention to the fact that if it were necessary to find the grounds of departure they would exist in s117(2)(b)(ii) “because the child is being cared for, educated or trained in the manner that was expected by his or her parents.”  This is reinforced by s 117(6) which says that

   In having regard to the proper needs of the child, the court must have regard to:

   (a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and…

3. The just and equitable provisions and the propriety of the order are matters are that I have made determinations about above in accordance with my reasons under s 124.

4. Accordingly, under either of the sections but primarily as requested under s 123 and s 124, I propose to make orders that the father pay 50% and the mother 50% of the school fees for G to attend C Preschool and/or junior School and school fees for S (and in due course, G) to attend C School, in addition to the father’s existing child support requirements. 

1. As I have been supplied with no information about the child-care fees for G, I decline to make Order 10 sought by the mother.  This means presumably that the contribution for G to attend C Preschool or junior school will commence next year.  I also note and agree that the term school fees should mean what the notation says they should mean in the minute of orders sought by the mother.  

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  19 August 2008

END NOTE 1

MINUTE OF ORDERS SOUGHT BY RESPONDENT MOTHER

1. The Mother have sole parental responsibility in relation to matters concerning the education and medical treatment of the children, [S] born […] February 2002, and [G] born […] July 2004, otherwise the parties have equal shared parental responsibility.

2. That the children live with the Mother.

3. That the children spend time with the Father as follows:

   a)From Friday evening in each alternate week until the following Monday morning;

   b)On each alternate Wednesday (being the Wednesday prior to the weekend the children will be with the Mother), from 3pm until the commencement of school and/or child care on the following Thursday.

4. During the first half of the September/October 2008 school holidays [S] will spend seven days with his Father and [G] will spend six days with his Father, otherwise the children will live with their Mother.

5. During the December/January school holiday periods the children spend alternate weeks with each parent, the first week in 2008/9 and alternate weeks thereafter being with the Mother, and the first week in 2009/10 and alternate periods thereafter being with the Father.

6. Commencing in 2009 the children spend half of each end-of-term school holiday period with each parent.  Unless otherwise agreed the first half shall be with the Father and the second half shall be with the Mother.  Such periods will commence at 9am on the first day after the last day of the school term and conclude at 5pm on the Saturday which is nearest the mid-point of the holiday period.

7. Neither party shall cause the children to be removed from Australia without the consent in writing of the other parent or order of the court.

8. The Australian Federal Police place the names of the children, [S] born […] February 2002, and [G] born […] July 2004, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.

9. Each parent is to pay 50% of day care or child care fees for [G], which payments will be made by reimbursement to the Mother within seven days of her supplying copies of dockets evidencing those payments having been made by her until he commences to attend school full time.

10. The Father is to pay 60%; and the Mother 40% of:

    a)School fees for [G] to attend the [C] Pre-school and/or Junior School;  and

    b)School fees for [S], and in due course for [G], to attend [C] School.

AND IT IS NOTED THAT:

A.In this order “school fees” means compulsory tuition fees and any other compulsory fee charge or levy.

B.Payments referred to in these Orders are in addition to the liabilities of the parties to pay child support in accordance with the provisions of the Child Support (Assessment) Act.

C.Payment of the Father’s share of school fees pursuant to this order will be made direct to the preschool or school.

End Note 2

AMENDED MINUTE OF ORDERS SOUGHT
BY APPLICANT HUSBAND

IT IS ORDERED THAT:-

1. The Children, [S] (dob […]/02/02) and [G] (dob […]/07/04) spend time with their Father as follows:

a.   [S] to spend time with his father each alternate week from after school on Thursday until the commencement of school the following Monday.

b.   [G] to spend time with his father each alternate week from 10.00am Thursday until the following Monday, with pick up and drop off at the […] Child Care Centre.

c.   Commencing with the 2008 September / October ACT school holidays, and every term holidays thereafter, unless otherwise agreed, the children to spend the first half of every term holidays in even numbered years with the father and the first half of every term holidays in odd numbered years with the mother.

d.   For the 2008 Christmas school holidays, the children to spend the first two weeks with the father and the balance / remainder of the holidays with the mother.

1. Once [G] reaches 5 years of age, on the 22^nd of July 2009:

a.   [S] to spend time with his father each alternate week from after school on Wednesday until the commencement of school the following Monday.

b.   [G] to spend time with his father each alternate week from 10.00 am on Wednesday until the commencement of pre-school the following Monday.

c.   For the 2009 Christmas school holidays, the children to spend the last two weeks with the father and the balance / remainder of the holiday period with the mother.

d.   For 2009 both children to spend half of every term school holidays with each parent, unless otherwise agreed, the first half with the mother and the second half with the father.

1. Following the commencement of the 2010 academic year and thereafter:

a.   Both children to spend time with their father each alternate week from after school on Wednesday until the commencement of school on the Monday.

b.   The children to spend half of all school holidays, including the Christmas holidays, with each parent. Unless otherwise agreed, the children shall spend the first half of each holiday period (including the Christmas school holidays) with the mother in even numbered years and the second half with the father, and the first half of each school holiday period with the father in odd numbered years, and the second half with the mother.

End Note 3

Family Law Act 1975 (Cth)

61C Each parent has parental responsibility (subject to court orders)

(1) Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Note: Section 111CS may affect the attribution of parental responsibility for a child.

61D Parenting orders and parental responsibility

(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

(a) expressly provided for in the order; or
(b) necessary to give effect to the order.

61DA Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, 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 for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

65DAC Effect of parenting order that provides for shared parental responsibility

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a child; and

(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

65DAE No need to consult on issues that are not major long-term issues
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major-long term issues.

Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.

(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order.

End Note 4

Child Support (Assessment) Act 1989 (Cth)

117Matters as to which court must be satisfied before making order

1. In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   (a)      the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b)      the proper needs of the child; and

   (c)      the income, earning capacity, property and financial resources of the child; and

   (d)      the income, property and financial resources of each parent who is a party to the proceeding; and

   (da)     the earning capacity of each parent who is a party to the proceeding; and

   (e)      the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)       himself or herself; or

   (ii)any other child or another person that the person has a duty to maintain; and

   (f)       the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g)      any hardship that would be caused:

   (i)       to:

   (A)     the child; or

   (B)     the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii)      to:

   (A)     the liable parent; or

   (B)     any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

   (iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.