Finn and Finn (No.3)
[2013] FCCA 1373
•18 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINN & FINN (No.3) | [2013] FCCA 1373 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – spend time arrangements – overnight time – overseas travel – issue of appropriate bond – passport – watchlist – communication book. FAMILY LAW – Property – small property pool – father’s failure to provide ‘full and frank disclosure’. CHILD SUPPORT – Departure – application for departure from administrative assessment of child support. |
| Legislation: Federal Circuit Court Rules 2001, reg.24.03 |
| Black & Kellner (1992) FLC 92-287; 15 Fam LR 343 Finn & Finn [2011] FMCAfam 1135 Finn & Finn (No.2) [2011] FMCAfam 1561 Gyselman & Gyselman(1991) 15 Fam LR 219; (1992) FLC 92-279 Guinti and Giunti (1986) 11 Fam LR 160; (1986) FLC 91-759 In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713 In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143 Livesey v Jenkins [1985] All ER 106 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653 Stanford v Stanford [2012] HCA 52 Weir & Weir (1993) FLC 92-338; (1992) 16 Fam LR 154 |
| Applicant: | MR FINN |
| Respondent: | MS FINN |
| File Number: | SYC 5733 of 2010 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 6, 7, 8, 9 and 10 May 2013 |
| Date of Last Submission: | 7 June 2013 (written submissions) |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Belgrave Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Self represented litigant |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Solicitors for the Independent Children’s Lawyer: | Peter Baker Solicitors |
ORDERS
Child Support
Pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment payable by MR FINN, (“the Father”) to MS FINN (“the Mother”) in respect of the child X, born in (country omitted) on (omitted) 2010 (“X”) as follows:
(a)for the period commencing 1 April 2013 and ending 30 June 2014 the child support payable be set at the annual rate of $7,800.00 (“the departure amount”);
(b)the departure amount be adjusted on 1 April 2015, 1 April 2016 and 1 April 2017 in line with movements in the weighted average of the national weighted Consumer Price Index (“the adjusted departure amount”);
(c)for the period commencing 1 July 2014 and ending 30 June 2017 the child support payable be as assessed by the Child Support Agency from time to time OR be set at the adjusted departure amount, whichever is HIGHER; and
(d)for the period commencing 1 July 2017 the child support payable be as assessed by the Child Support Agency from time to time.
The Mother forthwith cause the Child Support Registrar to be served with a sealed copy of these orders.
The Mother have liberty to apply in the next 12 months to have the matter relisted in the event there are difficulties in the implementation of these orders by the Child Support Agency.
Parenting
All previous orders with respect to X are hereby discharged.
Subject to paragraph 6 and 24 herein, the Father and the Mother have equal shared parental responsibility for making major long-term decisions about X.
If, after civil and timely consultation with each other, the parties are unable to agree about a major long-term decision with respect to X’s health, including a decision about elective medical or dental procedures, then the Mother’s view as to the decision in X’s best interests prevail and the Mother promptly advise the Father of the decision she has made, and provide him with all relevant information known to her, including but not limited to the contact details for the health facility where the procedure will be carried out.
X live with the Mother when she is not spending time with the Father pursuant to these Orders.
X spend time with the Father as agreed or, failing agreement, as follows:
(a)from the date of these orders until the commencement of paragraph 8(b) herein:
(i)each Wednesday from 10:00am to 4:00pm;
(ii)each Sunday from 10:00am to 4:00pm;
(b)subject to paragraph 11 herein, from 9 April 2014 until 10 August 2014 in a two week cycle as follows:
(i)in week one: Wednesday from 10:00am to 4:00pm and on Sunday from 10:00am to 4:00pm;
(ii)in week two: Wednesday from 10:00am to 4:00pm and Saturday for an additional period of not more than 24 hours at times as agreed or, failing agreement from 4:00pm Saturday until 4:00pm Sunday.
(c)from 13 August 2014 until 1 February 2015 in a two week cycle as follows:
(i)in week one: Wednesday from 10:00am to 4:00pm; and
(ii)in week two: Wednesday from 10:00am to 4:00pm and on Friday from 6:00pm until Sunday 6:00pm.
(d)from (omitted) 2015, in a two week cycle during school terms as follows:
(i)in week one: commencing in the first week of each new school term, Wednesday from 4:00pm to 7:00pm, and Friday from 6:00pm until Sunday at 6:00pm; and
(ii)in week two: Wednesday from 4:00pm to 7:00pm.
Commencing in 2015 and every year thereafter, X spend time with the Father during school holidays as agreed or, failing agreement, as follows:
(a)during holidays commencing after the 1st, 2nd and 3rd school terms in odd-numbered years from 10:00am on the midpoint day of the holiday period until 6:00pm on day before the new school term;
(b)during holidays commencing after the 1st, 2nd and 3rd school terms in even-numbered years from 6:00pm on the last day of school until 10:00am on midpoint day of the holiday period;
(c)In the long summer school holidays as follows:
(i)in 2015: for 3 non- consecutive periods of not more than 7 days and 6 nights as agreed or, failing agreement from 10:00am on 27 December 2015 to 10:00am on 1 January 2016, from 10:00am on 7 January 2016 to 10:00am on 13 January 2016; and from 10:00am on 19 January 2016 to 10:00am on 25 January 2016;
(ii)in 2016 and even-numbered years thereafter: from 6:00pm on the last day of school until 10:00am on the mid-point day of the holiday period; and
(iii)in 2017, and odd-numbered years thereafter: from 10:00am on the midpoint day of the holiday period until 6:00pm on the day before the commencement of the new school term.
Notwithstanding any other order made herein, X spend time as follows:
(a)each year with the Mother, from 10:00am to 4:00pm on Mothers’ Day;
(b)each year with the Father, from 10:00am to 4:00pm on Father’s Day;
(c)with the Father from 10:00am to 4:00pm on 25 December 2013;
(d)with the Father from 4:00pm on 24 December 2014 until 10:00am on 25 December 2014;
(e)with the Father from 10:00am to 4:00pm on 25 December 2015; and
(f)with the Mother from 10:00am to 4:00pm on 25 December 2016.
Pursuant to paragraph 8(b)(ii) herein, X’s overnight time with the Father prior to 19 April 2014 be conditional upon the following:
(a)the Father having provided to the Mother certificates of his attendance and completion at the following 3 courses:
(i)EITHER the course provided by Relationships Australia called “Taking Responsibility” OR the course provided by (omitted) Relationship Services called “(omitted)” (as recommended in the Family Report of Ms R, dated 25 February 2013); and
(ii)a Triple P (Positive Parenting Programme) course (also as recommended in the Family Report of Ms R, dated 25 February 2013); and
(iii)the “Keeping Contact” course provided by (omitted); and
(b)the Father having confirmed to the Mother in writing that he has suitable sleeping accommodation for X at his residence.
The Mother attend and complete a Triple P Parenting programme and the (omitted) “Keeping Contact” programme as soon as practicable after the date of the making of these orders, and provide the Father with a certificate of her having completed the programme.
For changeovers on days when X is not at child care, pre-school or school, the Father collect X from the Mother’s residence at the commencement of her time with him, and return her to the Mother’s residence at the conclusion of that time.
If on any occasion the Father is more than 60 minutes late in arriving to collect X from the Mother pursuant to these orders, then the Mother is entitled to regard X’s time with the Father on that occasion as being cancelled.
Both the Father and the Mother be at liberty to attend all school events and extra-curricular activities X is involved in, and to obtain all information from X’s school about her progress, and to attend all parent-teacher events.
Neither parent make arrangements for X to engage in any extra-curricular activity that would take place during X’s time with the other parent, without the express written consent of the other parent.
If X is engaging in an extra-curricular activity as agreed between the parents, the parent having care of her during the time(s) for that activity take her to that activity.
Neither party denigrate the other, or permit any other person to do so, in X’s presence or hearing, and at all times the parents communicate with each other in a civil and courteous manner.
If X suffers illness or injury requiring admission to hospital, the parent having care of her at that time immediately inform the other parent, and provide the other parent with details of the hospital, including a telephone number for the treating team.
Subject to paragraph 21 herein, both parties keep the other informed about X’s activities, health, education, development and day-to-day care including any medications administered to her during her time with a parent through the use of a communication book to be exchanged between the parties each time X moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the child is living or spending time at the time when the existing communication book is filled (“the communication book”).
The parties each be restrained from writing anything in the communication book which is not related to X and from using offensive, discourteous or derogatory language in the book or from otherwise using the communication book to record personal comments or criticisms about each other, or as a means to threaten or intimidate each other.
If either party intends moving residence that party give the other party not less than 7 days’ notice in writing of the new address.
At all times the parties keep each other advised of their residential addresses and contact telephone numbers.
Notwithstanding paragraph 5 herein, the Father’s consent not be required for the issue of an Australian passport for X, female, born in (country omitted) on (omitted) 2010, on the first occasion or for any replacement of that passport within the following 5 years (“the Passport”).
Subject to any agreement between the parties to the contrary, upon the issuing of the Passport, the Mother immediately lodge the passport with the Court’s Sydney Registry, where it be retained until it is released either:
(a)for the purposes of paragraph 31 herein; OR
(b)to either party, with the written consent of the other party; OR
(c)by further order of the Court.
Within three days of X’s return to Australia, the party then having care and control of the Passport lodge it again with the Court’s Sydney Registry and immediately advise the other party in writing that he/she has done so.
Until (omitted) 2018, both parties be restrained from obtaining a passport for X from a country other than Australia.
The Mother and Father and their servants and agents are restrained from taking or sending or attempting to take or send X from the Commonwealth of Australia.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing X’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain X’s name on the Watch List until her 8th birthday, being on (omitted) 2018, or the Court orders its removal.
Paragraphs 28 and 29 herein do not prohibit the taking or sending of X from Australia to a place outside Australia if it is done pursuant to paragraph 31 herein or with the consent in writing of each party (authenticated as prescribed in accordance with r.12 of the Family Law Regulations 1984).
Notwithstanding paragraphs 28 and 29 herein, the Mother be permitted to travel with X to (country omitted) once only for up to 28 days within the period 5 September to 30 November 2013 OR 1 February to 31 March 2014 (but not during the period 1 December 2013 to 31 January 2014) and, during that time:
(a)X visit only the country of (country omitted), other than for stopovers; and
(b)the Mother ensure that X speaks to the Father by telephone, or Skype if the Father can facilitate Skype communication, not less than every three days, other than when such contact is not possible because of airline schedules or local conditions beyond the Mother’s control.
Property
By way of property settlement the Father pay to the Mother the sum of $15,000.00 (“the payment”) with the Father to cause the payment to be deposited into the trust account of his solicitors within 28 days of the date of these Orders.
Subject to paragraph 35 herein, the Father is directed to forthwith provide his solicitors with an irrevocable authority to release the payment to the Mother as she may direct in writing by no later than 9 April 2014 or not less than 7 days following the Mother’s compliance with paragraph 34 herein, whichever event should first occur.
Upon the Mother’s return to Australia with the child from (country omitted), she is directed to forthwith cause the husband’s solicitors to be provided with a copy of the relevant pages of X’s passport that evidences X’s return to Australia.
In the event that the Mother does not cause X to return from (country omitted) within 30 days of the departure permitted by paragraph 31 herein, then the Father have liberty to apply to have the matter relisted to seek that the payment be released to him for the purpose of commencing proceedings to secure the return of X to Australia.
Unless otherwise specified in these Orders:
(a)each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;
(b)each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;
(c)each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d)each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.
Other
In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.
Subject to paragraphs 11 and 12 herein, the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Finn & Finn (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5733 of 2010
| MR FINN |
Applicant
And
| MS FINN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting, property and child support proceedings between the Applicant, MR FINN, (“the father”) and the Respondent, MS FINN (“the mother”).
The parenting aspect of the proceedings concerns the child of the parties’ marriage, X, born on (omitted) 2010 (“X” or “the child”).
The parties are also in dispute with respect to the parties’ modest property pool and whether there should be a departure from the current administrative assessment of child support.
Background
The father was born on (omitted) 1974 and is currently aged 39 years. The mother was born on (omitted) 1975 and is currently aged 38 years.
The parties had a relatively short relationship. They commenced cohabitation in about (omitted) 2008 and were married on (omitted) 2009. X was born on (omitted) 2010. The parties separated on a final basis in October 2010.
The father has re-partnered with Ms C. The mother has not re-partnered.
Procedural history
This matter has had the benefit of numerous court events since first coming into my docket in 2010. The parties first came before me in my duty list on 22 November 2010 at which time a request was made for the appointment of an Independent Children’s Lawyer (“ICL”) and X was placed on the Australian Federal Police Watchlist.
On 22 December 2010, Ms Baker appeared as ICL for the first time and interim consent orders were made providing for X to remain on the watchlist and for the father to spend time with X at least once a week through ‘(omitted)’. The father was also to enrol and complete both an anger management and parenting after separation course.
On 22 February 2011 I listed the matter for final hearing for two days to be fixed and requested a family report be prepared and released by 29 July 2011. A family report of Ms R was subsequently released on 23 June 2011.
The matter came before me on 15 August 2011 by way of an Application in a Case filed by the father on 4 May 2011 seeking that the interim parenting orders be varied to allow the father to spend unsupervised time with X. On 15 August 2011, I had capacity to hear that dispute and that same day delivered what became the first of two interim decisions in this matter. In that ex tempore decision (later settled and distributed as Finn & Finn [2011] FMCAfam 1135) (“the first interim decision”) I provided some brief background in paragraphs 7 to 11.
In summary, as a result of the interim hearing on 15 August 2011, I discharged paragraphs 3 to 5 of the Minute attached to the Orders made on 22 December 2011, dismissed the Application in a Case filed on 4 May 2011 and otherwise made interim orders for the father to spend supervised time with X for defined times increasing from 2 to 3 hours on Wednesdays, Saturdays and Sundays with changeovers to occur at either (omitted) Supermarket, or a Railway Station between (omitted) and Central.
On 28 September 2011 the mother filed an Application in a Case seeking orders permitting her to travel with the child to (country omitted). That Application was heard on 17 October 2011 after which time I reserved my decision to a date and time to be fixed. I also made orders directing the father to file material in response to the mother’s property application (as introduced by way of her Amended Response filed on 29 August 2011) and requested that an updated family report be prepared and released by January 2012.
I delivered the second interim decision in relation to the proposed travel to (country omitted), ex tempore, on 25 October 2011. The reasons for that decision were subsequently settled and released with the citation Finn & Finn (No.2) [2011] FMCAfam 1561 (“the second interim decision”). In summary, the mother’s Application in a Case was dismissed with no order as to costs and the existing orders remained in full force and effect. I otherwise directed the parties to attend a Conciliation Conference on 22 November 2011 with a view to resolving their emergent financial dispute.
When the matter returned before me on 21 December 2011 the mother did not appear. Given developments in the case such as non-compliance with directions, the non-appearance of the mother, and the non-attendance by the parties at the scheduled updated family report interviews, I vacated the final hearing listing on 2 and 3 February 2012 and the further allocated Conciliation Conference listing.
On 2 February 2012, the matter again came before me and was adjourned for a further month to allow negotiations between the parties who, at that time, indicated were close to settling their dispute on a final basis.
Unfortunately, on 2 March 2012 it was apparent that the parties’ negotiations had broken down and that further directions were required including providing the parties with a further Conciliation Conference date. That Conference took place on 9 May 2012 but no settlement was achieved.
When the parties and ICL returned on 23 May 2012, I again listed the matter for final hearing commencing on 6 May 2013 for no longer than 3 days and again requested an updated family report be prepared and released by February 2013.
Directions for the filing of material were made and the final hearing dates confirmed on 2 April 2013, despite the non-appearance of the father or his legal representatives.
The final hearing, which had been listed for not more than three days, duly commenced on 6 May 2013 (“the Final Hearing”). Unfortunately, even after five days of hearing time written submissions were required to complete the final hearing (with a timetable extending to 7 June 2013).
At the final hearing, the father was represented by Mr Othen of counsel, the mother by Mr Givney of counsel and the ICL by Ms Falloon, also of counsel.
Proposals
Father’s proposal
The father provided a minute of proposed orders with his case outline document. In summary, the father sought an outcome whereby:
·the parties have equal shared parental responsibility for X;
·X live with the mother and spend time with the father for graduated times up to eight weeks after the making of orders to be from after school or 3:00pm on Friday until 6:00pm on Sunday every alternate weekend and on Wednesday afternoons as well as during school holidays and special days;
·changeover occur at school or otherwise at the mother’s residence at the commencement of time and the father’s residence at the conclusion of time between the father and X provided the parties live within 20km of each other or otherwise at a railway station located halfway between the respective residences;
·both parties be at liberty to attend all school and extra-curricular events;
·the mother enrol and complete a Triple P parenting program;
·the mother ensure her residence is kept ‘adequately clean and hygienic at all times when X is residing there’;
·the wife’s applications for spousal maintenance and property settlement be dismissed;
·the wife cause her property in (country omitted) to be sold and the proceeds divided equally between the parties; and
·the wife pay the husband’s costs.
The father did not seek any orders in respect of child support and opposed the making of a departure order.
On the final day of the Final Hearing the father, through Mr Othen, indicated that he could consent to, or not oppose, some of the orders being sought by the ICL[1] (which are discussed later in these reasons). The father also sought some variations or alternate provisions to those sought by the ICL which are discussed later in this decision.
[1] Transcript, 10 May 2013, pages 76-92.
Mother’s proposal
The mother also provided a case outline document with a minute of proposed orders sought. That minute was superseded, however, by a further minute of order that was provided to the Court on 8 May 2013. In summary, the mother sought an outcome whereby:
·the mother have sole parental responsibility for X;
·X live with the mother and spend time with the father on a graduated scheme building up to be, when X is at school, on Wednesday overnight, Friday at 6:00pm until Sunday at 6:00pm on alternate weekends and half school holidays as well as special days;
·changeovers occur at school or otherwise the father collect and return X from the mother’s residence at the commencement and conclusion of his time with X;
·in the event that the father is 60 minutes late to collect X then such time be forfeited;
·the father sign for X to obtain a passport and the mother provide notice to the father of intended overseas travel and in particular, the mother be permitted to travel with X to (country omitted) from 10 August 2013 and 20 September 2013 making arrangements for X and the father to communicate whilst away;
·the mother be restrained from obtaining a (country omitted) passport for herself or X;
·the father pay the mother $15,000 within 28 days of orders by way of property settlement; and
·there be a variation of child support payments to the mother.
That said, again on the final day of the final hearing the mother indicated that she could consent to, or did not oppose, the parenting orders being sought by the ICL (which are discussed later in these reasons).[2]
[2] Transcript, 10 May 2013, page 89.
ICL’s proposal
In relation to the parenting dispute, the ICL proposed a comprehensive minute of orders which was tendered and marked as Exhibit “ICL 4”.
As stated, the mother ultimately agreed to, or did not oppose, the making of the parenting orders sought by the ICL. The father also agreed, or did not oppose, a number of orders sought by the ICL which, according to the transcript, are paragraphs 1, 2, 6, 7, 8, 10, 13 (but the father seeks that the mother also undertake an anger management course), 16, 17, 18, 20, 21, 25, 16 (all bolded below).[3] The father did, however oppose a number of the orders sought and suggested variations or alternate orders in lieu.
[3] Transcript, 10 May 2013, pages 76-87.
For the sake of completeness, the orders sought by the ICL (together with notations where the father did not consent) were as follows:
“1.All previous orders with respect to the child X, born in (country omitted) on (omitted) 2010 are hereby discharged, including orders for the child’s name to be placed on the Airport Watch List.
2.The parents shall have equal shared parental responsibility for making major long-term decisions about X.
3.[4] If, after civil and timely consultation with each other, the parents are unable to agree about a major long-term decision with respect to X’s:
[4] The father does not propose that this paragraph of the orders sought by the ICL be made: Transcript, 10 May 2013, page 77.
a.education;
b.health, including a decision about elective medical or dental procedures;
c.place of residence with the mother;
d.then the mother’s view as to the decision in X’s best interests shall prevail.
4.[5] If the mother has made a decision in accordance with order 3, the mother shall promptly advise the father of the decision she has made, and provide him with all relevant information known to her, including but not limited to:
[5] Ibid.
a.in the case of a decision about education: the name and location of any school at which she proposes to enrol X;
b.in the case of a decision about a medical or dental procedure: the contact details for the health facility where the procedure will be carried out;
c.in the case of a proposed change of her residential address: the proposed new address.
5.[6] Notwithstanding order 2, the father’s consent shall not be required for the issue of an Australian passport for X, born in (country omitted) on (omitted) 2010.
6.Upon the issuing of a passport for X, the mother shall immediately lodge the passport with the court’s Sydney Registry, where it shall be retained until it is released either:
a.to the mother for the purposes of X’s travel with her in August-September 2013, as permitted by these orders; OR
b.to either parent, with the written consent of the other parent; OR
c.by further order of the court.
[6] The father opposes the making of this order. The father only consents to the making of paragraphs 6 and 7 of the orders sought by the ICL on the basis that paragraph 5 is not made: Transcript, 10 May 2013, page 77.
7.Within three days of X’s return to Australia, the parent then having care and control of X’s passport shall lodge it again with the court’s Sydney Registry and immediately advise the other parent in writing that he/she has done so.
8.X shall live with the mother when she is not spending time with the father pursuant to these orders.
9.[7] X shall spend time with the father as follows:
[7] The father proposes a different ‘spend time with’ arrangement.
a.From the date of these orders until 19 August 2013:
i. Each Wednesday from 10am to 5pm;
ii. Each Sunday from 10am to 5pm.
b.From 21 September 2013 until 1 February 2014:
i. Each Wednesday from 10am to 5pm;
ii. Each Sunday from 10am to 5pm;
ii. On Christmas Day 2013, from 11am until 3pm.
c.From whichever is the earlier of:
- the date of the father’s compliance with order 12; or
- 2 February 2014, and until 1 June 2014:
i. Each Wednesday from 10am to 5pm;
ii. In each alternate weekend, on Sunday from 10am to 5pm;
iii. On each other weekend, from 10am on Saturday until 10am on Sunday.
d.From 2 June 2014 until 1 February 2015:
i. Each Wednesday from 10am to 5pm;
ii. On alternate weekends, from 6pm on Friday until 6pm on Sunday;
iii. On Christmas Day 2014, from 11am to 3pm;
iv. From 9am on Fathers’ Day until before school the following day.
e.From 1 February 2015, during school terms:
i. Each alternate weekend, from 6pm on Friday until 6pm on Sunday, commencing on the first weekend of each new school term;
ii. From 4pm on the Wednesday immediately following the weekend time, until before school on Thursday;
iii. From 9am on Fathers’ Day until before school the following day.
10.In 2015 and every year thereafter, X shall spend time with the father in school holidays as follows:
a.during holidays commencing after the 1st, 2nd and 3rd school terms in odd-numbered years: from 10am on the midpoint day of the holiday until 6pm on the day before the new school term;
b.during holidays commencing after the 1st, 2nd and 3rd school terms in even-numbered years: from 6pm on the last day of school until 10am on the mid-point day of the holiday;
c. In the school holidays commencing in December 2015: for 3 non- consecutive periods of not more than 7 days and 6 nights;
d.In the school holidays commencing in December 2016 and even-numbered years thereafter: from 6pm on the last day of school until 10am on the mid-point day of the holiday period;
e.In the school holidays commencing in December 2017, and odd-numbered years thereafter: from 10am on the midpoint day of the holiday period until 6pm on the day before the commencement of the new school term.
11.[8] Orders for X’s time with the father shall be suspended as necessary for X to be with the mother:
[8] The father proposes a different ‘spend time with’ arrangement and opposes the mother taking X on a trip to (country omitted) in August/September 2013.
a.Each year, from 9am on Mothers’ Day until commencement of school the following day;
b.In years when X is with the father for the first half of the school holidays: from 2pm on Christmas Day until 5pm on Boxing Day;
c.Between 20 August 2013 and 20 September 2013.
12.[9] X’s overnight time with the father prior to 2 February 2014 is conditional on the following:
[9] The father will consent to paragraphs 12(b)-(e) provided the time to be spent with X is not conditional on his completion of the required courses.
a.his having demonstrated to the mother that he has suitable sleeping accommodation for X at his residence; and
b.his having attended and completed either the course provided by Relationships Australia called “Taking Responsibility” OR the course provided by (omitted) Relationship Services called “(omitted)” as recommended in the Family Report of Ms R, dated 25 February 2013; and
c.his having attended and completed a Triple P (Positive Parenting Programme) course, also as recommended in the Family Report of Ms R, dated 25 February 2013; and
d.his having attended and completed the “Keeping Contact” course provided by (omitted); and
e.the father having provided to the mother certificates of his attendances at those courses.
13.The mother shall attend upon a Triple P Parenting programme and the (omitted) ‘Keeping Contact” programme as soon as practicable after the date of the making of these orders, and shall provide the father with a certificate of her having completed the programme.
14.[10] For changeovers on days when X is not at child care or pre-school or school, the father shall collect X from the mother’s residence at the commencement of her time with him, and return her to the mother’s residence at the conclusion of that time.
[10] The father seeks that all changeovers not occurring at school or day care occur at a railway station which would be approximately the midpoint between the two residences of the parties: Transcript, 10 May 2013, pages 85, 87.
15.[11] If on any occasion the father is more than 60 minutes late in arriving to collect X from the mother pursuant to these orders, then the mother is entitled to regard X’s time with the father on that occasion as being cancelled.
[11] The father opposes the making of this order.
16.Both the father and the mother are at liberty to attend all school events and extra-curricular activities X is involved in, and to obtain all information from X’s school about her progress, and to attend all parent-teacher events.
17.Neither parent shall make arrangements for X to engage in any extra-curricular activity that would take place during X’s time with the other parent, without the express written consent of the other parent.
18.If X is engaging in an extra-curricular activity as agreed between the parents, the parent having care of her during the time(s) for that activity shall take her to that activity.
19.[12] The mother is permitted to travel with X to (country omitted) between 20 August 2013 and 20 September 2013, and during that time:
[12] As stated, the father opposes the mother taking X on a trip to (country omitted) in August/September 2013.
a.X shall visit only the country of (country omitted), other than for stopovers;
b.The mother shall ensure that X speaks to the father by telephone, or Skype if the father can facilitate Skype communication, not less than every three days, other than when such contact is not possible because of airline schedules or local conditions beyond the mother’s control.
20.Neither party shall denigrate the other, or permit any other person to do so, in X’s presence or hearing, and at all times the parents shall communicate with each other in a civil and courteous manner.
21.If X suffers illness or injury requiring admission to hospital, the parent having care of her at that time shall immediately inform the other parent, and provide the other parent with details of the hospital, including a telephone number for the treating team.
22.[13] The father shall forthwith obtain a suitably bound book (‘the communication book’) for the purpose of the parents communicating with each other about X’s day-to-day care, including any medications administered to her during her time with a parent, and this order shall apply until X’s 7th birthday.
23.The communication book shall accompany X at all times when she is moving from one parent to the other.
24.The parents shall not use the communication book to record personal comments or criticisms about each other, or as a means to threaten or intimidate each other.
25.A parent intending to move residence shall give the other parent not less than seven days notice in writing of his/her new address.
26.The parents shall at all times keep each other advised of their residential addresses and contact telephone numbers.
27.[14] X’s overseas travel with the mother is conditional on the mother providing a cash bond of $5,000 to be available for the father’s use for X’s recovery and return to Australia should that become necessary, and such bond shall be:
a.provided to the father’s solicitors not less than 14 days prior to X’s departure from Australia; and
b.returned to the mother on the first business day following X’s return to Australia, as evidenced by production of her passport by the mother to the father’s solicitors.”
[13] The father opposes the making of orders pursuant to paragraphs 22, 23 and 24: Transcript, 10 May 2013, page 87.
[14] The father opposes the mother taking X on a trip to (country omitted) in August/September 2013 “but if the court is against him on that,[the father] would suggest that the cash bond be set at a higher amount”: Transcript, 10 May 2013, page 87.
To summarise once more and for the sake of further clarity, the mother indicated her consent to (or would not oppose the making of) the orders sought by the ICL in respect of parenting. The father indicated his support for the orders sought by the ICL with the following exceptions (noting however that the changes suggested by the father differ somewhat from his proposal):
·In respect of parental responsibility, while he supports there being an order for equal shared parental responsibility, the father does not support the mother being given the ‘final say’ in matters pertaining to X’s health, education and residence;
·In respect of paragraphs 9(a) and 9(b) the father seeks to spend time with the child from 10.00am until 4.00pm (not 5.00pm) and that ‘Sunday’ time referred to in paragraphs 9(a)(ii) and 9(b)(ii) be alternate Sundays and Saturdays (ie. in week 1 it be Sunday and in week 2 it be Saturday);
·In respect of paragraphs 9(c) and 9(d) (ie. from 1 February 2014) the father seeks that the time spent on alternate weekends be from Friday at 6.00pm until Sunday at 6.00pm;
·In respect of paragraph 9(e)(ii) (ie. from 1 February 2015), the father does not seek to spend overnight time with the child from 4.00pm Wednesday until Thursday before school but proposes that time be spent on Wednesdays only from 4.00pm until 7.00pm;[15]
·While he agrees with the school term holidays proposed by the ICL in paragraph 10 of the minute, the father proposes that commencing in 2014 (ie. the years before X commences school), his alternate weekend time during school term holiday periods commence at 10.00am on Fridays;[16]
·In respect of special occasions (and relevant to paragraph 11 of the ICL’s minute), the father proposes that for ‘Christmas Eve’, ‘Christmas Day’ and ‘Easter Sunday’, “the parties effectively take it in turns to share” those days, with the father spending time with the child from 10.00am until 6.00pm on Christmas Eve in odd-numbered years, and on Christmas Day and Easter Sunday in even-numbered years;[17] the father also proposes that the parties share spending time with X on her birthday (ie. (omitted)) with the father spending with the child in even-numbered years from 2.00pm (or from 4.30pm if a school day) until 6.00pm; the father further proposes that the child spend time with each of the parties on their respective birthdays each year from 10.00am until 6.00pm provided it is not a school day;
·In respect of the commencement of spending overnight with the child, the father opposes any pre-condition (as proposed in paragraph 12(a) of the ICL’s minute) that he “demonstrate to the mother that he has suitable accommodation for X at his residence”;[18]
·The father seeks that all changeovers not occurring at school or day care occur at a railway station which would be approximately the midpoint between the two residences of the parties;[19]
·The father opposes the order sought in paragraph 15 of the ICL’s minute that would lead to a cancellation of his time with the child “on any occasion the father is more than 60 minutes late in arriving to collect X from the mother pursuant to these orders”;[20]
·The father opposes the use of a communication book;[21] and
·The father proposes that the ‘Airport Watch List’ order and restraints continue for a further five years or until X turns 8 years of age and, consequently, the father opposes the child being able to travel with the mother to (country omitted) in August/September 2013 “but if the court is against him on that, he would suggest that the cash bond be set at a higher amount”.[22]
[15] Transcript, 10 May 2013, page 80.
[16] Ibid, page 81.
[17] Ibid, page 83.
[18] Ibid, page 85.
[19] Ibid, pages 85, 87.
[20] Ibid, page 85.
[21] Ibid, page 85.
[22] Ibid, pages 87-88.
Issues and proposals
In respect of parenting matters, the parties are in dispute as to the following matters:
·whether any order for equal shared parental responsibility should be conditional on the mother being given the ‘final say’ in matters pertaining to X’s health, education and residence;
·what orders there should be for X to spend time with the father, including whether there should be any pre-conditions for the commencement of overnight time;
·whether the child’s time with the father should be cancelled on occasions where the father is more than 60 minutes late in arriving to collect X;
·the venue for changeovers;
·whether there is benefit in the parties using a communication book;
·whether there is benefit in X travelling to (country omitted) with the mother in August/September 2013, and if so, whether the mother should be provided with an order that would enable her to apply for a passport without the father’s consent; and
·whether X should remain listed on the ‘Airport Watch List’, and if so, for how long?
In respect of property and child support matters, the parties are in dispute as to the following matters:
·firstly, by way of property settlement, whether the father should pay to the mother the sum of $15,000.00 and/or whether the mother should cause the sale of the property situate at (country omitted) and thereafter pay the father a sum equivalent to one half of the net proceeds of sale; and
·secondly, in respect of child support, whether there should there be a departure from the administrative assessment payable by the father to the mother in the sum of $7,800.00 per annum to be paid monthly or as determined by the Child Support Registrar, for the period 1 April 2013 to 30 June 2017 and with such sum to be adjusted on 1 April each year in accordance with movements in the Consumer Price Index.
The father also seeks an order that the mother pay his legal costs.
Evidence
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition, Ms R gave oral evidence and was cross-examined.
The parties and the ICL also tendered a number of documents to which I will refer later in this decision.
Father’s evidence
The father relied on the following documents at the Final Hearing:
·his Amended Initiating Application filed 22 November 2010[23];
·his Affidavit affirmed 30 April 2013 and filed 3 May 2013;
·his Affidavit sworn/affirmed 2 May 2013 and filed 3 May 2013;
·his Financial Statement sworn 2 May 2013 and filed 3 May 2013[24]; and
·his case outline document and proposed minute of order received by Chambers on 3 May 2013.
[23] The orders sought at the Final Hearing were further amended by the proposed minute of orders provided with the Father’s case outline document.
[24] Although not listed in the Father’s case outline document, the father clearly relied on this document. The father had caused an earlier Financial Statement to be filed on 14 November 2011.
The father presented as an articulate witness but was evasive at times and clearly had trouble remembering a number of events that were put to him. While he was apologetic for some past admitted behaviour, he tended to minimise the extent of his own behaviour and not all of the father’s responses were child-focussed. He also failed to provide all the relevant parenting details to Ms R. The father’s evidence about his income, in particular his business’s income, was both evasive and unconvincing.
Mother’s evidence
At the Final Hearing, the mother relied on the following material:
·her Amended Response filed 29 August 2011;
·her affidavit shown 29 April 2013 and filed 6 May 2013;
·her affidavit sworn and filed 22 April 2013;
·her Financial Statement sworn 29 April 2013 and filed 6 May 2013; and
·her case outline document and minute of proposed orders dated 5 May 2013.
The mother also presented as an articulate witness despite English not being her first language. Generally speaking, the mother was more child-focussed in her responses and more prepared to make concessions when reasonable propositions were put to her during cross-examination.
Family reports
The parties had the benefit of two family reports prepared by family consultant, Ms R; her first report dated 23 June 2011 (“the first report”), and her updated report dated 25 February 2013 (“the updated report”).
Ms R’s first report was discussed in the first interim decision. In that report Ms R made the following recommendations:
“51.It is recommended that X live with the mother.
52.It is recommended that X spend time with the father for two to three hours on three occasions per week. The time does not need to be supervised, however, it may be necessary for changeovers between the parents to be supervised.
53.It is difficult to predict when it will be appropriate for X to spend a further increased amount of time with the father. From a general child developmental perspective, it may be appropriate to initiate single overnight visits once per week when X is two to two-and-a-half years old. This could be gradually increased to an arrangement whereby X spend substantial and significant time with the father from when she is four years old.
54.The recommendation above is dependent upon the parents being able to, both separately and together, monitor X and adjust the arrangement in a responsive manner according to her needs.
55.It is recommended that, prior to X spending overnights with the father, he complete a parenting course that will improve his awareness and skills of child rearing practices, particularly regarding sleep routines.
56.It is also recommended that Ms Finn access a family support and/or domestic violence counselling service in her local area.”
In paragraph 6 of her updated Family Report, Ms R describes the current parenting arrangements as follows:
“6. The parents have been implementing variations of the orders made after an interim hearing on 15 August 2011, which provided for X to spend time with her father for three hours three times per week, unsupervised. In recent times, X has been spending time with her father each Wednesday and one or two days each weekend for a few hours, with the days and times being flexible.”
In respect of child’s time with the father, Ms R notes the following from her interview with the father at paragraph 14:
“14. Mr Finn said that X had been sleeping at his previous home but that since he has moved in with Ms C they have been adjusting to living together and X’s cot is in storage and he has not yet set up a room for her. He said that, because X spends time at home with her mother, he prefers to take her out and do activities and visit people when she is in his care and if she falls asleep in the car he takes her home to her mother to sleep. He said that the time he spends with X is dependent on the weather and his plans can change on the day. Mr Finn considers that the flexible arrangement for him to spend time with X has been working well and, whilst it might be disruptive to Ms Finn and to him, he considers that it is the best arrangement until such time as X commences spending equal time with each parent.”
Ms R then goes on to state at paragraph 17:
“17. Mr Finn was somewhat vague regarding his parenting proposals for X. He said he would like to trial overnight time but that he also thinks X may be too young to spend overnight time with him. He later said he thinks X should commence spending overnight time with him immediately. Mr Finn said that he often takes X home to her mother to have her daytime nap as he thinks that it is more appropriate for her to wake up with her mother. He said that she has slept at his home and cries when she wakes up but settles within five minutes. Mr Finn said that X sleeps at night in bed with her mother and that this will make it difficult for her to adjust to sleeping overnight at his home. He said he does not expect Ms Finn to force X to sleep in her own bed if she is distressed.”
From her interview with the mother, Ms R states the following at paragraphs 22 and 23:
“22. Ms Finn said that X is at a developmental stage where she says “no” a lot. Ms Finn indicated that she has struggled with managing X’s behaviour but said that she has a book on parenting and also attended a course about growing emotional intelligence in children. She said she has implemented strategies, including “attending to her” and rewarding her for positive behaviour, which she considers have led to an improvement in her relationship with X. Ms Finn considers that X is developing normally but that Mr Finn blames her (Ms Finn) when he experiences difficulties in X’s behaviour. She said that she provided Mr Finn with the title of the book she has been using. Ms Finn said that she is currently training X to sleep in her own bed but that X still requires her touch to fall asleep and still comes to her bed in the middle of the night.
23. Ms Finn said that, recently, X has been excited when her father arrives to collect her and she thinks that there is a bond developing between them. She said that, in late 2011, X was refusing to spend time with her father so Ms Finn spent some time with them in order to improve X’s familiarity and comfort with her father. She said that she and Mr Finn have been flexible with the interim orders and, whilst there have been some advantages to this, she said that Mr Finn has been inconsistent in the time that he spends with X and that has made it difficult for X to adjust to spending time with him: Ms Finn said that Mr Finn returns X to her earlier than arranged, sometimes does not come to collect her as arranged and sometimes demands to see her without notice. She said that Mr Finn does not attempt to have X take her daytime nap at his home and she is concerned about how X will transition to spending overnight time with him. Ms Finn said that she appreciates Mr Finn not forcing X to stay with him for her sleep when she says she does not want to but Ms Finn also raised concern that Mr Finn has not made any effort to have X sleep at his home.”
In addition to the parties, Ms R interviewed the father’s partner, Ms C, and the mother’s sister, Ms E. Ms R’s summary of these interviews appears in paragraphs 30-31 and 32-33 of updated report respectively.
Ms R provided a comprehensive ‘Evaluation’ in paragraphs 37-48 of the updated report. In summary, Ms R states that:
·the child appears to be a happy three year old who has meaningful relationships with both parties and that “her behaviour in response to being told ‘no’ is more common amongst younger children and one would expect her to be moving on from tantrum-like behaviour soon”;[25]
[25] Updated Family Report, paragraph 39.
·the child continues to have a primary attachment relationship with the mother and appears to have a close and familiar relationship with the father and the maternal aunt as well as a “familiar and comfortable relationship with Ms C”;[26]
[26] Ibid.
·since the initial Family Report, the father now appears to be far more flexible regarding the parenting arrangements for the child whilst she is still young although his proposal for spending time with her was not clear and that it appears the father “has not taken all of the opportunities to spend time with X that have been available to him and has not made any particular effort, to assist X to transition to spend overnight time with him”;[27]
·both parties propose that the child spend increased amounts of time with the father but that neither party have “specific proposals about how or when to do this” with the father preferring a “flexible arrangement” and the mother preferring a “more strict arrangement … with some aspects of flexibility”;[28]
·the child has been exposed to violence and the consequent difficulties in the parties’ relationship;[29]
·if the mother’s account is accurate, the father “has displayed abusive and controlling behaviour throughout their relationship and post separation” and that there appears to be a pattern of the father “behaving in a controlling and abusive manner toward his partners and ex-partners”;[30]
·the father may benefit from accessing an appropriate counselling service to assist him to behave appropriately toward his new partner and develop skills to manage the stressors that he may experience within their relationship;[31]
·despite the issues of family violence as alleged by the mother, it appears that the parties have each made “some effort to effectively co-parent and focus on X’s needs with respect to her spending time and maintaining her relationships with each of them” (eg. the mother by moving her residence closer to the father and by facilitating the child spending time with him and the father by being more responsive to the mother’s views and by not having “vigorously pursued his previous proposals”);[32]
·the mother’s apparent dependence on the father for financial support may make her vulnerable to his alleged abuse and exertion of control and, from the father’s perspective, the mother “uses his time and relationship with X as a negotiating tool to extract money from him”;[33]
·the mother may need to further develop her skills in providing firm boundaries and expectations regarding the child’s behaviour;[34]
·the father seems to experience some limitations in his responsiveness to his current relationship with the child and this may impact upon, not just by his personality characteristics, but also by the limited amount of time they spend together and limited nature of their interactions;[35] and
·the father “may benefit from doing some reading and attending some courses about the emotional development of children” and “strategies for parents to support that development and to further develop his skills in providing firm boundaries and expectations regarding X’s behaviour”.[36]
[27] Ibid, paragraph 42.
[28] Ibid, paragraph 44.
[29] Ibid, paragraph 37.
[30] Ibid.
[31] Ibid.
[32] Ibid, paragraph 38.
[33] Ibid.
[34] Ibid, paragraph 39.
[35] Ibid, paragraph 44.
[36] Ibid, paragraph 41.
At paragraphs 44 to 48 of the updated report Ms R states:
“44. … Despite the parents’ relationship having improved, the difficulties that they have experienced, Ms Finn’s reported need for reliable support and X’s age suggest the need for X’s time with her father to be consistent and predictable. In the context of the family violence issues and X’s relationships it would benefit X if she were to spend gradually increasing amounts of time with her father to initially include her having her daytime nap at his home and then to include her spending overnight time at his home. X would also benefit if her parents were to monitor her adjustment to such changes and alter the arrangement as required in order to meet her needs.
45. It is suggested that Mr Finn consider his financial obligations and his capacity to meet those obligations and ensure that he provides the financial support to X that he has said he is willing to do.
46. Equal time is not deemed appropriate at this time or at any time in the foreseeable future due to the history of violence, ongoing difficulties in the co-parenting relationship (although much improved), X’s age, X’s relationships with each of her parents and the current parenting arrangements. It is deemed appropriate, as it was in the initial family report, for X to spend increasing amounts of time with her father toward a pattern of substantial and significant time. This will allow X to maintain her primary attachment relationship with her mother and further develop her relationship with her father.
47. The issues regarding whether parental responsibility should be shared or be held solely by Ms Finn remain pertinent, as outlined in paragraph 48 of the initial family report. The parents’ improved communication and co-operation and the decrease in issues of family violence may indicate less of a need to consider sole parental responsibility but the history of family violence as alleged by Ms Finn and the associated issues of power and control may make future shared decision making problematic.
48. The issues regarding X being on the airport watch list and unable to travel to (country omitted) with her mother remain, as outlined in paragraph 50 of the initial family report.”
Finally, Ms R made the following recommendations in paragraphs 49 to 52 of the updated Family Report:
“49. It is recommended that X live with her mother.
50. It is recommended that X spend time with her father in a pattern such as the following but taking into consideration Mr Finn’s willingness to commit to such arrangements, each parent’s work hours and X’s possible attendance at child care:
For a period of two months:
• One day each weekend from 9am to 5pm.
Then, for a further period of two months:
• In week 1, one day on the weekend 9am to 5pm
• In week 2, Saturday 9am to Sunday 9am
Then, for a further period of four months:
• In week 1, one day on the weekend 9am to 5pm
• In week 2, Saturday 9am to Sunday 5pm
Then, for a period of one year:
• In week 1, one day on the weekend from 9am to 5pm
• In week 2, Friday 5pm to Sunday 5pm
Then:
• Each alternate weekend Friday 3pm to Monday 9am
In addition to the above and until X commences school:
• Each Wednesday 9am to 5pm if Mr Finn is able to do this with respect to work commitments or otherwise for some time each Wednesday morning or afternoon
In addition to the above and once X commences school:
• Each Wednesday 3pm to 6pm.
51. It is recommended that Mr Finn participate in a counselling service or group work program that addresses issues of family violence and other relationship issues for men. Such counselling and programs are available at:
• Relationships Australia — ‘Taking Responsibility’ Ph: (omitted) (they are currently doing intake for a group commencing 4 May 2013 in City)
• (omitted) Community Services (omitted) Relationship Services — ‘(omitted) Ph; (omitted)
52. It is recommended that both of the parents attend a Triple P (Positive Parenting Program) course. Locations and dates of courses are available at or Ph: (omitted)”
The Court notes and takes into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provides an authoritative statement about how family reports should be treated in proceedings such as this case.[37]
[37] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Ms R’s oral evidence
As stated, Ms R was required for cross-examination and, by agreement, the final hearing commenced with this. Ms R gave evidence on the afternoon of the first day, and again on the morning of the second day.
Ms R was asked by Ms Falloon for the ICL about the benefits or otherwise of the child travelling to (country omitted) with the mother for six weeks during August/September this year. Ms R responded:
“There would obviously, be some benefits to X of travel and particularly, to travel to her birth country and her mother’s birth country. But there are also the disadvantages of her doing that, of her having a break in time with her father and it would depend how long that break was.
… six weeks is still a long time for a three-year old and it would potentially, have some impact on her relationship with her father and her capacity to maintain the visiting schedule with her father upon return. But it’s … not an out of the question amount of time, six weeks for a three-year old, especially if the mother was continuing to support the father’s relationship with X through photos and through talking about him and potentially, through phone calls or Skype communication whilst on holidays.”[38]
[38] Transcript, 6 May 2013, page 33.
Ms Falloon also asked Ms R questions about the benefits, frequency and duration of the child spending time with the father:
“Are you able to comment upon that and to tell the court whether you think that is – as a long term proposition – something that would be beneficial to X’s relationship with her father, each Saturday, 9 to 5?
‑‑‑As a long term proposition, it would provide X with the opportunity to maintain a relationship with her father but it would seriously restrict the type of relationship that she would have with him.
On the basis of what you know in terms of the evidence that’s before the court at this time, can you see a reason, in your expert opinion, to restrict X’s time with her father to one day a week?
‑‑‑Not on a long term basis, no.
So is it your view, on the basis of what you know now, that there should be overnight time for her with her father?
‑‑‑I think that what there should be is an increase in amounts of time and an increase in the range of activities that X can engage in with her father which, as children get older, does tend to include overnight time, yes.
So the recommendations in your second report which begin on page 23 for a staged increased – if I put it that way – in the amount of time X spends with her father, that is a recommendation which you maintain at this time?
‑‑‑Yes.
… if it were the case that evidence was put before the court and accepted by the court that there have been difficulties in recent times or at least, on an occasion with X separating from her mother in order to go to her father, if that evidence is accepted by the court – put before it and accepted – would that change your view as to your recommendations in your second report about time for X with her father?
‑‑‑Potentially, it could. It would depend on details of what has been happening and it would preferably, depend on a further assessment of what has been happening, if there has been something happening, in order to ascertain, as best as possible, what might be going on for X and what might be causing difficulties in her transitioning to her father.
…
Just going back to your recommendations as to the staged introduction of overnight time in particular, would you say that it is important for X and her father to spend the time together in each of those stages before it progresses to another?
‑‑‑Yes.
In other words, that there be a build up and that there be careful – compliance is really too strong a word but careful attention to building that relationship on the part of the father?
‑‑‑Yes. The – in terms of the staged build up, that is to assist X who, at this stage, is only three years old to, one, become more familiar with spending time at her father’s home, for her to become – for her to adjust to sleeping in her father’s home. So starting with her daytime nap and then progressing on to a night time sleep and also for her to adjust to a possibly more predictable arrangement of spending time with her father.
And given her age which is just over three, is predictability important for X at this time or is time to her less critical than it might be to a slightly older child?
‑‑‑Predictability is important to her. She is three so she may not be able to verbalise what days of the week or what times and such but as three-year olds who attend childcare know, they get into the routine of it. They know what’s happening. They know when they go to childcare and that their primary parent is going to pick them up. So just the predictability of how often and for how long is important for her.”[39]
[39] Ibid, pages 34-35.
At the commencement of the second day of her oral evidence. Ms R was asked questions by Ms Falloon relating to the alleged difficulties the child was having in separating from the mother’s care and going into the father’s care and the possible factors influencing the child. Ms R stated:
“… if you take the mother’s account as accurate, then it seems as though the parents are actually doing some things that should be assisting X, so the mother reports that she is positively encouraging X to go, she’s helping X to go, she’s going out with X and the father to try to settle her into it, and the father is, on some occasions, not forcing it, and bringing her home early, and he’s also calling the mother to seek – well, to advise and to seek some assistance in managing X’s behaviour. On the other side of that, though, … according to the mother, the father is displaying abusive-type behaviour, so stressful and swearing and demanding, and is forcing her – physically forcing her. So if that were the case, then that would probably not be assisting X. Other issues – the general stress and tension between the parents, and the conflict, and the not high levels of good communication and cooperation between the parents would all add to the difficulties of a three-year-old in this situation. The timing of things leading up to this final hearing in the matter is a possible stressor for both parents, which then leads to stress for the child. I think that, based on my observations of X’s behaviour, she also – as I noted in the report, she struggled to accept no from the adults around her, whether that was her – at the time it was her mother, her aunt, the child-care worker, and myself, and did show tantrum-like behaviour – screaming and yelling and just not being able to settle herself and not being able to accept being settled from her mother at the time immediately. She did, in the end, settle. So in terms of the level of distress that X is showing, you would expect for a three year old who has spent the majority of her time with her mother, that there would be some resistance at being separated from mother – of going to her father. That’s not unusual. The high levels of distress, some of that might be coming from the other issues within X’s behavioural management at the moment, that when she doesn’t get what she wants she does display highly distressed behaviour.”[40]
[40] Transcript, 7 May 2013, page 53.
Ms R went on to confirm that in light of the recently filed evidence, she was recommending a slower progression towards any overnight time being spent by the child with the father. Ms R confirmed that:
“I think that the staged increase is a plan that necessitates each stage going smoothly, before moving onto the next stage. So that the idea of it was to get X spending the entire day with her father and spending for a daytime nap with her father, prior to moving onto any kind of overnight time. So without – if the indication is that she’s not settled in whatever arrangement is in place, then yes you would be concerned about moving onto the next stages of any planned increase in time or changes to time. And that – I think that – that is the hard thing about making parenting arrangements for young children, that I noted in paragraph 44 of the second report – on the top of page 22, was that for a young child the parents do need to monitor her, and do need to be responsive to her presentation, and to change things. They can’t absolutely stick to a rigid plan to do things if it’s quite obvious that X is not coping with it.”[41]
[41] Ibid, pages 53-54.
Despite effective cross-examination by both Mr Othen for the father and Mr Givney for the mother, Ms R did not alter her overall recommendations for a modest transition to more time being spent, including overnight time, between the child and the father. Ms R stated:
“… in terms of the timeframe of implementing the arrangement, …. between January and now if there still hasn’t been any consistency and X spending the longer periods of time with her father that the first stage of the one day on the weekend and the Wednesday afternoon could potentially go for longer than the two months prior to implementing any overnight time, and that would also again be dependent on X’s presentation. So if X is showing such resistance at the changeovers to her father then one would expect, potentially, that if she was then expected to sleep at her father’s that that’s going to perhaps cause her to stress.”[42]
[42] Ibid, page 75.
Ms R also added that such time could also be supplemented by brief telephone communication.[43]
[43] Ibid, page 74.
Ms R also stated that the focus of transitioning towards increased time could occur upon the mother’s return with the child in September this year, depending upon whether the Court allowed such an overseas trip to occur.[44]
[44] Ibid, pages 76-77.
Overall, given that Ms R is an independent party in these proceedings, the Family Reports and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.
Submissions
Counsel for each party prepared case outline documents and written closing submissions for the Court’s benefit. In addition, counsel also made additional oral submissions during the course of the Final Hearing. The transcripts for the Final Hearing will, of course, reflect those oral submissions. I do not propose to summarise the written and oral submissions made by counsel separately in these reasons but I will refer to those submissions in my discussion of the relevant law below.
The Court will now consider the relevant law in light of the evidence and submissions. I will consider and determine the parties’ dispute in three parts, firstly the parties’ parenting dispute, secondly, the parties’ property dispute and thirdly, whether there should be a departure from the administrative assessment of child support.
Part One: Parenting Dispute
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in s.60CC of the Act. These will be considered in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[45] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[45] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[46]
[46] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
In this case the father seeks an order for equal shared parental responsibility. Although the mother had sought an order for sole parental responsibility she later agreed to the order sought by the ICL; namely that the parties should have equal shared parental responsibility for X. However, the ICL also seeks that the relevant order be subject to a provision that if, following consultation with each other, the parties are unable to agree about a major long-term about X’s education, health (including a decision about elective medical or dental procedures) or the child’s place of residence with the mother, “then the mother’s view as to the decision in X’s best interests shall prevail”.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, I am satisfied that such an outcome would not be in the best interests of X.
It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[47]
[47] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
The Court will consider this issue further following its discussion and analysis of the matters relevant under s.60CC of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[48] or alternatively substantial and significant time,[49] with each parent.
[48] Section 65DAA(1) of the Act.
[49] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
I note that neither party in this case is seeking an equal time parenting arrangement.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
The parties are in broad agreement as to the spend time arrangements between the child and the father. The Court is also satisfied that these arrangements, broadly speaking, provide for the child to spend substantial and significant time with the father. That said, there are some issues as to the timing and frequency of the relevant times to be spent, including what factors should be in place before transitioning to overnight time.
I note that both parties reside in the Sydney metropolitan area and it is anticipated that changeovers should occur, where possible, at the child’s school upon her commencement in 2015. The present arrangements for changeover appear somewhat problematic and the Court will further consider this aspect of the dispute later in these reasons.
Injunctions and restraining orders
Various restraining orders are sought by the parties in this matter. I note that in respect of the orders sought by the ICL, a number of restraints are either consented to or not opposed. These include a mutual non-denigration order and restraints upon enrolling X in extracurricular activities in certain circumstances.
The father seeks to retain the current orders restraining the removal of the child from Australia and maintaining the X’s name on the AFP Watchlist for a further five years and at least until the child’s 8th birthday. The mother, however, proposes that the child’s name be removed (and this outcome has the support of the ICL).
In this context, the power of the Court to grant injunctive relief in areas relating to children arises from s.68B of the Act. This section is directed to children and includes adults in a situation associated with a child.
There is an overlap between s.68B(1) and s.68B(2) of the Act in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone or independent power, meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) of the Act is ancillary, in that it only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the “best interests of the child” is an important, but not paramount, consideration, unless the order or injunction is a parenting order.[50]
[50] Flanagan & Handcock[2000] FamCA 150; (2001) 27 Fam LR 615; (2001) FLC 93-074; Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088.
Consequently, I will consider these issues further following a consideration of the statutory provisions relevant to the determination of X’s best interests.
Best interests of the children
As previously stated, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. For this purpose, the Court will now turn to consideration of the factors in sub-ss.60CC(2), (3) and (4) of the Act in the context of this case.
Primary considerations: s.60CC(2) of the Act
In addition there will be orders that:
·the parties each retain their respective household contents and other personal property including any monies standing to their individual credits in any banks, credit unions or the like; and
·the parties each otherwise indemnify the other with respect to any other debts for which they may otherwise be liable.
I will now consider the child support dispute.
Part Three: Child Support Dispute
Law and discussion
As previously stated, the mother also seeks orders for there to be a departure from the administrative assessment of child support.
Normally, such applications are made directly to the Child Support Agency by way of seeking a change of assessment with an avenue of appeal thereafter to the Social Security Appeals Tribunal. Appeals to this Court and the Family Court are limited to areas of law, not fact.
That said, s.116(1) of the Child Support (Assessment) Act 1989 (“the Assessment Act”) states:
“(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged;
(iii) the Registrar has disallowed the objection; or
(aa)all of the following apply:
(i) a decision has been made in respect of the administrative assessment;
(ii) an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab) the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
Note 1: For the orders that a court may make under this Division see section 118.
Note 2:With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3A court may make an order under this Division if the court sets aside a child support agreement under section 136.”
In other words, pursuant to s.116(1)(b) of the Assessment Act, the Court has the discretion to entertain a departure order application in circumstances where there are existing proceedings between the parties before the Court and it is appropriate to deal with the child support proceedings concurrently with the other court proceedings.
Section 117 of the Assessment Act sets out the matters on which the Court must be satisfied before making a departure order. Sections 117(1) and (2) are of note:
“Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia)because of the income, property and financial resources of either parent; or
(ibbecause of the earning capacity of either parent; or
(ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.”
The Court must be satisfied that one or more of the grounds for departure exist and that it is just and equitable and otherwise proper for the Court to make the order sought. The Act goes on to provide special considerations for the Court to weigh in the balance when contemplating a departure order, such as the duty to maintain, special needs of the child, high costs in enabling spend time arrangements and the like.
The Court must also be satisfied that, in the circumstances of the case, the administrative assessment is an unjust and inequitable determination on the level of child support. In such cases, the Court may consider making such an order.
Also to be considered is s.117(4) and s.117(5) of the Assessment Act (being directly relevant to s.117(1)(b)(ii)).
Section 117(4) provides:
“(4) 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.”
Section 117(5) provides:
“(5)In determining whether it would be otherwise proper 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, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.”
Section 118(1) of the Assessment Act sets out the orders which the Court can make in such circumstances. These include an order varying the annual rate of child support by a parent (s.118(1)(a) of the Assessment Act).
Section 118(3) of the Assessment Act states:
“(3) If the court makes an order under this section, the court must:
(a) give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and
(b) cause the reasons to be entered in the records of the court.”
Section 118(4) of the Assessment Act states:
“(4) Subsection (3) does not apply in relation to an order if:
(a) it is an order made by consent; and
(b) the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.”
In this case the mother argues that the administrative assessment should be departed from and in her final submissions she argued that a payment of $150.00 per week is “warranted” given the circumstances of this case.[131]
[131] Mother’s written closing submissions received 10 May 2013, paragraph 17.
The specific order sought by the mother would result in the annual sum of child support payable by the father for the period 1 April 2013 to 30 June 2014 being set at $7,800.00 per annum and paid monthly in the amount of $650.00. The mother further seeks that the departure from administrative assessment be in place from 1 April 2013 until 30 June 2017 whereupon it would revert to administrative assessment. In addition, the departed annual amount would be adjusted in accordance with the Consumer Price Index (“CPI”) on the 1 April in 2014, 2015, 2016 and 2017.
The mother further argues that, following a consideration of the relevant statutory criteria in light of the evidence, the Court “would have no difficulty in finding that it would be just and equitable and otherwise proper to make an Order varying the current child support assessment”.[132] In this respect the mother suggests that in considering s.117(2) of the Assessment Act, “the Court would not have to go past subsection (c) of that section with respect to the Father’s income, property and financial resources”.[133] In other words, there are special circumstances, being the father’s failure to properly declare his true financial position, which has resulted in a child support assessment that is both unjust and inequitable.
[132] Ibid.
[133] Ibid.
In response, the father submits that, notwithstanding this matter concerns competing parenting and property applications, the Court should still be hesitant in finding that, in the special circumstances of the case, it is in the interests of the parties and the child to consider departing from the assessment.[134] The father further submits that:
“This is not a case where the parties live in circumstances of wealth not contemplated by the formula, or not within the usual run of matters the child support agency deals with as a matter of routine. Once a departure order is made, then for the period it runs, any variations must be brought before the Court. It seems on present evidence variations may be required within less than 12 months, and that cannot be in the interests of the parties, given neither can afford the costs of contested proceedings. The proper place for the mother’s application is the child support agency, as will be so for any further application the father might make on the mother’s circumstances changing.”[135]
[134] Father’s written final submissions received 17 May 2013, paragraph 45.
[135] Ibid.
While the Court understands the father’s argument, it is satisfied that there are special circumstances that warrant a consideration of the mother’s child support application. I will elaborate upon this later in these reasons.
At this point I consider it appropriate to comment again on the father’s Financial Statement filed on 3 May 2013. At paragraph 11 the father discloses an estimated pre-tax income of $1,000.00 per week and at paragraph 31 the father discloses an ‘actual payment’ for child support estimated at $100.00 per week based on an assessment of “$30.00 per month”. Clearly this is an error and the relevant figures he inserts at paragraph 31 appear to be in the wrong columns. That said, the Court is satisfied that the actual amount of child support that the father has been assessed to pay, as at 17 February 2013, was at a weekly rate of $24.80.[136] This assessment is for the period 1 April 2013 until 30 June 2014.
[136] Mother’s affidavit sworn and filed 22 April 2013, Annexure ‘E’.
Under cross-examination by Ms Falloon for the ICL, the father agreed with the proposition that the sum of $25.00 per week did not represent a “proper” amount of child support.[137] The father went on to acknowledge that he had proposed that he pay an increased amount of $40.00 per week. Ms Falloon then asked:
[137] Transcript, 8 May 2013, page 169.
“And that’s enough, you think, is it?
‑‑‑Well, like I said, it’s never enough but I would like to leave a little bit for myself as well so that when I do have X on those days, I can take her out and spoil her as well.”[138]
The father then went on to assert that the mother also spoils the child.[139]
[138] Ibid.
[139] Ibid.
The father’s evidence raises concerns about his understanding of the costs necessary to support a child of 3 plus years of age. In particular, the husband gave no indication that he recognises the impact on X of his minimal contribution to her financial support, or that he considered making voluntary contributions at times when his income arguably would have provided the opportunity for him to do so.
I note the mother asserts in her most recent Financial Statement filed 6 May 2013 that she estimates she spends the sum of $232.00 per week to support X. I note that it was never suggested to the mother during cross-examination that the sum of $232.00 per week was an excessive or otherwise inappropriate amount to be spent on X. If the order sought by the mother is made, the father would be contributing approximately 65% towards the costs spent by the mother on the child.
The father’s view as to an appropriate level of financial support is contradicted by the Australian Government’s own modelling on the costs of raising children. If one consults the ‘Cost of Children Table 2013’ that is used for child support assessment purposes, the sum of $5,707.00 per year is applied in a situation where a child’s parents earn a combined income of just $33,570.00 per year.[140] This translates to an estimate of approximately $110.00 per week being spent on one child aged under 13 years by parents who only have combined income of just one half of current average weekly earnings. The relevant ‘costs’ amount rises to $10,742.00 per year when the combined income of the parents reaches average weekly earnings of $67,138.00 per year. This translates to an assessment of costs of approximately $207.00 per week. The actual payment or assessment made by one parent to the other depends, of course, on their respective incomes and the relevant care arrangements.
[140] See the Child Support Agency website: the Child Support Act uses the annualised “MTAWE” figure (Male Total Average Weekly Earnings) to identify the costs of children at different income levels. The costs of children table is constructed using income levels divided at each 0.5 of the MTAWE figure until 2.5 times the MTAWE figure is reached. The costs table is updated each year to recognise the changes in MTAWE.
In other words, according to the relevant modelling, the father’s proposal of $40.00 per week would be insufficient to meet the costs of the child. This would not change even assuming both parents contributed that sum per week.
That all said, in accordance with the Full Court’s decision in Gyselman & Gyselman(1991) 15 Fam LR 219; (1992) FLC 92-279, it is clear that the court must address each of the following issues:
“1. Whether one or more grounds of departure in s 117(2) is established. If so:
2. Whether it is “just and equitable” within the meaning of s 117(4) to make a particular order.
3. Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.”[141]
[141] 15 Fam LR 219 at 224; FLC 92-279 at 79.064.
In this case, as previously stated, I am satisfied that there are special circumstances within the meaning of s.117(2)(c) of the Assessment Act. The evidence suggests that the father has the earning capacity to meet the order sought and this capacity is not reflected in the current assessment, even on the father’s own evidence.
Moreover, I am satisfied that, having regard to s.117(4) and 117(5) of the Assessment Act, the child’s proper needs are not being met by the current assessment and that, given the father’s earning capacity, it would be both just and equitable, and otherwise proper, for a departure from the administrative assessment in circumstances where such an assessment produced a child support assessment where the child support payable is less than an the annual rate of $7,800.00.
In forming this view, I have had regard to the nature of the duty of X’s parents to maintain her and, in particular, the fact that it is the parents of children themselves who have the primary duty to maintain their child, not the Australian taxpayer. That said, whilst no evidence was adduced as to any effect that the making of the order sought by the mother would have on any relevant entitlement of either the child or the mother to an income tested pension, allowance or benefit, it is clear that the mother will be reliant on Centrelink assistance until X commences school at least.
Conclusion
After considering the evidence and submissions in light of the structured discretion contained in the relevant Acts, the Court is satisfied as to the outcomes set out below.
Parenting
The Court is satisfied that the following outcomes would be in the best interests of X.
I am satisfied that the orders sought by the ICL that the parties have agreed to are in X’s best interests and therefore will be made.
As to parental responsibility, there will be orders for the parties to have equal shared parental responsibility except for the area of health for which the mother will have sole parental responsibility conditional upon her properly advising the father as to her decisions and providing him with all relevant information known to her including but not limited to contact details for the relevant health facility at which medical or dental procedures in relation to X will be carried out.
In the event of a disagreement in respect of education, residence or other long term issues, the parties will utilise dispute resolution procedures.
I am satisfied that overnight time with the father should commence on the Easter weekend 2014, which is in approximately 6 months; however, any commencement be conditional upon the following. Firstly, the father will be required to enrol in and complete the following courses (as recommended by Ms R, and noting that the father has indicated his consent to this):
·either the course provided by Relationships Australia called “Taking Responsibility” OR the course provided by (omitted) Relationship Services called “(omitted)”;
·a Triple P (Positive Parenting Programme); and
·“Keeping Contact” provided by (omitted).
Secondly, the father will need to confirm with the mother and the ICL in writing that he has established a suitable bedroom for X to enable overnight time to occur. As stated, the father gave clear evidence that he recognises the importance of providing X with her own space in his home and I am satisfied that he will make these arrangements at the earliest opportunity to enable overnight time to commence.
Until the commencement of overnight time, the child will spend time with the father in accordance with the current arrangements. While the Court sees benefit in such times concluding at 4:00pm (as sought by the father) it sees no benefit in alternating Saturdays and Sundays (also as sought by the father) in circumstances where there is a likelihood that he may be working on Saturdays. Regardless, there is benefit to the child in maintaining a routine in spending time with the father and extended paternal family each Sunday.
As stated, the overnight time will commence as early as 2 April 2014, and X will spend time with the father each Wednesday from 10:00am to 4:00pm, and in week one, on Sunday from 10:00am to 4:00pm, and in week two, on Saturday from 4:00pm until Sunday at 4:00pm. I note the ICL sought that overnight time be from 10:00am on Saturday until 10:00am on Sunday however by this time there would be an established pattern of Sunday day time with the father concluding at 4:00pm. I am also satisfied that the Family Consultant was recommending that a 24 hour period occur rather than stipulating it commence at a particular hour. Regardless, any order would be subject to any other agreement reached between the parties that presumably would take into account the child’s routine at the relevant time.
It is not entirely clear to the Court whether the proposed order in paragraph 9(e) of the ICL’s minute is meant to occur (as from 1 February 2015) on Wednesday every week or every alternate Wednesday. Regardless, I note that the father is not seeking overnight mid-week time but rather seeking time on Wednesdays from 4:00pm to 7:00pm. In the circumstances, such an order would be appropriate. In addition, as the school year commences on (omitted) 2015, that would be the appropriate date to start the school term spend time arrangements.
In respect of school holiday arrangements, I note the father sought that ‘school holiday time’ commence in 2014 whereas the ICL and the mother proposed that such commence in 2015. The Court agrees with the ICL and the mother that a transition to school holiday time should only occur once X has commenced school. Moreover, given the reality that overnight time will not commence until well into 2014, there would, in the Court’s view, be insufficient build up to ease the transition for the child towards spending block time in separate school holiday arrangements.
School holiday arrangements will therefore commence from 2015 with each party having care of X for half of each school holiday period. There will be specific orders in relation to X spending some block time with the father in the long summer school holidays commencing in 2015. That said, I find that the proposed order in paragraph 10(c) of the ICL’s minute potentially problematic as it appears to require the parties to agree on the relevant block periods. In light of the parties’ past communication difficulties, a default mechanism will be required.
For clarity, I repeat that until 2015 when X commences school, the fortnightly spend time arrangements will continue through each school holiday period subject to any agreement to the contrary.
There will also be specific orders allowing X to spend time with each party on special days such as Mother’s Day and Father’s Day to occur at times as agreed or otherwise from 10:00 to 4:00pm.
There will also be specific orders in respect of X spending time with each party at Christmas time. Noting that Christmas Day this year is a Wednesday, X will spend time with the father from 10:00am to 4:00pm that day as usual. In 2014, X will spend time with the father from 4:00pm on 24 December 2014 until 10:00am on 25 December 2014. In 2015, as X will spend the first half of the long summer school holidays with the mother, there will be specific orders for the child to spend time with the father from 10:00am to 4:00pm on 25 December 2015. The reverse will occur in the long summer school holidays commencing in 2016 and the child will spend time with the mother from 10:00am to 4:00pm on 25 December 2016.
Christmas time will thereafter occur as agreed or be spent with the parent who has care of the child for the first half of the long summer school holidays.
Unless the parties otherwise agree, from 2015 X will spend time with the parties as agreed or otherwise in accordance with paragraphs 10(a) and 10(b) of the ICL’s minute. For the sake of clarity, X will spend time with the father as follows and with the mother at all other times:
·during holidays commencing after the 1st, 2nd and 3rd school terms in odd-numbered years from 10:00am on the midpoint day of the holiday period until 6:00pm on day before the new school term;
·during holidays commencing after the 1st, 2nd and 3rd school terms in even-numbered years from 6:00pm on the last day of school until 10:00am on midpoint day of the holiday period;
There will no specific orders for other special days, such as Easter; time will occur as per the cycle for school terms (in all relevant years such as 2016) and during school terms holidays (in all other relevant years).
In light of past problems, there will also be orders as sought by the ICL that should the father be more than 60 minutes late in arriving to collect X pursuant to the Orders then that time may be forfeited.
Given the parties’ communication difficulties, the Court is satisfied that the use of a communication book is beneficial. There will be orders requiring the mother to initially purchase the book and thereafter be replaced by the party with whom the child is living or spending time with at the time when the existing book is filled. There will also be specific orders restraining either party from using the communication book to record personal comments or criticisms of the other or as a means to threaten and/or intimidate.
Travel to (country omitted)
I am satisfied that there are benefits to the child in travelling with the mother to (country omitted). Unfortunately, it has not been possible for the Court to consider this issue and give its decision prior to the mother’s preferred travel times. In the circumstances, there will be orders allowing the mother to travel with the child to (country omitted) for up to 4 weeks within the next 6 months, excluding the months of December 2013 and January 2014 unless the parties otherwise agree. The child’s time with the father will be suspended during this travel period. There will also be orders lifting the AFP Watchlist to allow such travel to occur.
I am also satisfied that there should be an order allowing the mother to apply for an Australian passport for X without the father’s permission. This however, will be limited to obtaining X’s first Australian passport and any replacement passport prior to the expiry of the first issued passport i.e. should it be lost. This will have the effect that X will have a passport for the next 5 years and any further passports will need to be obtained in the usual manner with both parties providing consent to the Passport Office. In the event that the parties are in dispute about any future renewal of X’s passport, then that dispute will need to be taken to a dispute resolution practitioner before seeking the necessary order from a Court.
Subject to any other agreement between the parties, there will be orders as sought by the ICL in relation to the lodgement and release of X’s passport with the Sydney Registry.
I am otherwise satisfied that the circumstances warrant the retention of the AFP Watchlist order until any renewal of the passport is needed. However, I am also satisfied that the ‘sunset clause’ sought by the father is appropriate in all the circumstances which would provide for the AFP Watchlist to be lifted as from X’s 8th birthday on (omitted) 2018.
The restraints to be imposed on either party obtaining a passport for X from a country other than Australia will also be discharged with effect from (omitted) 2018.
As to the provision of a bond, I agree with the father that a higher amount of $5,000 is necessary. That said, I am not satisfied that the mother has such funds readily available to her and thus I consider this issue below in the property conclusion.
There will otherwise be orders in accordance with the ICL’s travel proposal for X to only visit (country omitted), other than for stopovers, and to have regular ‘Skype’ time with father while she is overseas.
Property
The Court is satisfied that it would be just and equitable to make the orders sought by the mother in respect of property matters. Consequently, there will be orders to the effect that the father pay to the mother the sum of $15,000.00 (“the sum”) having been satisfied that the father has the financial capacity to pay the sum.
There will be orders directing the father to pay the sum to his legal representatives within the next 28 days. The father’s legal representatives will thereafter hold the sum in trust to be paid to the mother within 7 days of her return from (country omitted) with X as evidenced by production of her passport, or by 9 April 2014, whichever should first occur.
In the event that the mother does not return from (country omitted), the father can have liberty to apply to seek that the sum be released to him in order to take action and commence the appropriate proceedings to recover X to Australia.
In addition, there will be orders that the parties each retain their respective household contents and other real and personal property including any monies standing to their individual credits in any banks, credit unions or the like. The parties will otherwise indemnify the other with respect to any other debts for which they may otherwise be liable.
Child Support
As to the mother’s child support departure application, I am satisfied:
·firstly, that there are special circumstances existing within the meaning of s.117(2)(c) of the Assessment Act; and
·secondly, that the father has the earning capacity to meet the departure amount sought by the mother; and
·thirdly, that it would be both just and equitable, and otherwise proper, for there to be a departure from the administrative assessment.
Consequently, for the period commencing 1 April 2013 and ending 30 June 2014 the child support payable be set at the annual rate of $7,800.00 (“the departure amount”).
I am also satisfied that the departure amount should be in effect until 30 June 2017 and that it should be adjusted on 1 April 2015, 1 April 2016 and 1 April 2017 in line with movements in the weighted average of the national weighted Consumer Price Index (“the adjusted departure amount”). That said, the child support payable in the periods from 1 July 2015 until 30 June 2017 will be as assessed by the Child Support Agency from time to time or be set at the adjusted departure amount, whichever is higher. The child support payable for the periods on and from 1 July 2017 will thereafter revert to administrative assessment.
The Mother will be required to cause the Child Support Registrar to be served with a sealed copy of these orders. The Mother can also have liberty to apply to have the matter relisted in the next 12 months in the event there are difficulties in the implementation of these orders by the Child Support Agency.
Other
As stated, there will be orders requiring the parties to resolve any future disputes with the assistance of a Family Dispute Resolution Practitioner before returning to Court.
Subject to the relevant orders, and any argument as to costs, the appointment of the ICL will be discharged. The Court thanks her for her assistance in this matter.
Costs
I note that the father sought an order for his costs to be paid by the mother. In the circumstances, and in light of this decision, I also see no reason at this stage to depart from the general principle in s.117 of the Act that each party should pay their own costs. In the event that the father or the mother seeks a costs order relevant to these particular issues, then an Application in a Case should be filed.
This, of course, does not apply to the ICL who may choose to seek costs against the parties. I will hear from the ICL on that issue at the judgment hearing.
There will be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding three hundred and thirty-one (331) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 18 September 2013
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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