FIRTH & HALE-FORBES
[2013] FamCA 334
•10 May 2013
FAMILY COURT OF AUSTRALIA
| FIRTH & HALE-FORBES | [2013] FamCA 334 |
| FAMILY LAW – CHILDREN – Spend time with – Whether orders should be made with respect to a 15 year old child – Whether time with younger children should be in one block over a fortnight – Where parents have very different parenting styles – Where family consultant recommended that there be no significant change to youngest child’s arrangements while he is in therapy – Where change from two smaller periods to one larger period, but less time overall, is marginal for the children – Where family consultant recommended no orders be made with respect to the oldest child – Where it is not in the best interest of the youngest child to spend an extended period away from the mother – Ordered that younger children spend five days a fortnight with the father. FAMILY LAW – APPLICATION FOR ADJOURNMENT – Whether proceedings should be adjourned to allow for a further interview with the family consultant – Where this is third round of litigation in two years – Where proceedings would be delayed for many months – Where child distressed at notion of being reinterviewed – Where reinterview may not produce any evidence to change conclusions of the family consultant – Where adjournment of proceedings not in the best interests of the children – Application dismissed. FAMILY LAW – CHILD SUPPORT – Father’s application for a departure order – Where special circumstances not established – Application dismissed – Mother’s application for a departure order – Where mother needed to seek leave – Where mother was led to believe the father’s income was significantly less that it actually was – Where application made within reasonable time after the father’s actual income was disclosed – Leave granted – Where father’s earning capacity would result in an unjust and inequitable administrative assessment – Grounds for departure order established. |
| Child Support (Assessment) Act 1989 (Cth) 4, 111, 112, 117 Family Law Act 1975 (Cth) |
| Best & Best (1993) FLC 92-418 Dwyer & McGuire (1993) FLC 92-420 Gyselman and Gyselman (1992) FLC 92-279 |
| APPLICANT: | Mr Firth |
| RESPONDENT: | Ms Hale-Forbes |
| FILE NUMBER: | SYC | 3026 | of | 2011 |
| DATE DELIVERED: | 10 May 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 8 April - 10 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Druitt |
| SOLICITOR FOR THE APPLICANT: | Cameron Gillingham Boyd |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
IT IS ORDERED
That all previous orders in relation to the parenting of H born … August 1997, E born … April 2000 and B born … September 2001 be discharged.
That the parents have equal shared parental responsibility in relation to the children.
That there be no orders in relation to the child H.
That during school terms other than specifically provided in these orders the children E and B spend time with the father in the first week of each fortnight commencing on Thursday from the conclusion of school until the beginning of school on Tuesday, commencing on the Thursday immediately following the date of these Orders.
That during school holiday periods, and except as provided in these orders, E and B live with each of the mother and the father for half of each school holiday period and unless otherwise agreed in writing the children live with the mother for the first half of each school holiday period in odd numbered years and for the second half of each school holiday period in even numbered years.
That E and B shall spend time with the mother from 6 pm on the evening before each of Mothers’ Day and the mother’s birthday until 6 pm on each of Mothers’ Day and the mother’s birthday.
That E and B shall spend time with the father from 6 pm on the evening before each of Fathers’ Day and the father’s birthday until 6 pm on each of Fathers’ Day and the father’s birthday.
That in the event that the birthdays of D and F fall on days when the children are living with the mother, E and B shall spend time with the father for five hours if the day is one on which the children do not attend school, or for three hours if the day is one where the children are attending school.
That if the children have lived with the father for the first half of a school holiday period then the father’s term time with the children shall commence on the Thursday of the first week of term.
That if the children have lived with the father for the last half of a school holiday then his time with the children shall commence on the second Thursday of the school term.
That the application of the father to reduce periodic payments of child support to nil be dismissed.
That pursuant to section 118(1) of the Child Support (Assessment) Act 1989 (Cth), the rate of child support payable by the father be varied as follows:
(a)for the child support period commencing 1 July 2011 and finishing 30 June 2012, a lump sum of $50,286.60;
(b)for the child support period commencing 1 June 2012 and finishing on 30 June 2013 and each year thereafter, the annual rate be $343.33 per week per child.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Firth & Hale-Forbes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3026 of 2011
| Mr Firth |
Applicant
And
| Ms Hale-Forbes |
Respondent
REASONS FOR JUDGMENT
The proceedings before the Court relate to three children, H born in August 1997, E born in April 2000 and B born in September 2001. The father in his application seeks orders which would change the time that the children spend with each parent so that they would spend six consecutive nights each fortnight with their father and eight each fortnight with their mother. The father also seeks orders to discharge his current liability for periodic child support. The father does not seek to discharge the current orders which require him to pay the children’s private school fees and incidental expenses together with their medical expenses insofar as those expenses are not covered by private health insurance.
At the present time, pursuant to orders made by consent, the children spend six nights each fortnight with the father divided into a period of four nights and a period of two nights. The father seeks to consolidate the time into one block.
The mother also seeks to vary the orders relating to the time the children will spend with their parents so that the younger children would spend time with their father for four nights in one week and one night in the alternate week. The mother asks the Court to make no order in relation to the oldest child.
The mother seeks to vary the child support departure orders which had been made in 2008 and to increase the rate of periodic child support which the father was liable to pay from 1 January 2009.
Both of the parents are employed full time in professional practice.
The mother has not re-partnered. The father has remarried and he and his present wife (“the stepmother”) have two small children aged four and three (“little brothers”).
THE PROCEEDINGS
The matter was listed for hearing on 8, 9 and 10 April 2013. The father, in his case, relied upon affidavits sworn by him and his wife. The stepmother was not required for cross-examination. The mother relied upon affidavits sworn by her and an affidavit sworn by her brother. The mother’s brother was not required for cross-examination. The Court was assisted by the preparation of a Family Report by Mr L who, at the time of the preparation of the report, was a Family Consultant.
At the conclusion of the evidence, immediately after the cross-examination of Mr L, an application was made on behalf of the father for the proceedings to be adjourned. That application was ultimately refused and it was indicated that reasons for that decision would be included in these reasons.
HISTORY
The history of the litigation between the parties from the time of their separation to date is relevant to the issue of the adjournment.
The parties separated on 2 March 2004 when the children were aged six, almost four and two years of age. They remained living under the one roof with the children until 2006 and were still living in the same premises when applications in relation to parenting, child support departure orders and property settlement were heard before his Honour Justice O’Ryan in September 2005 for seven days. Judgement in those proceedings was handed down on 10 November 2005.
Relevantly for the purpose of these proceedings the orders put in place a parenting regime whereby the children lived with the father from Friday afternoon until Monday afternoon in one week and Sunday afternoon until Monday afternoon in the alternate week. Otherwise the children lived in the primary care of their mother.
By way of a child support departure order, the father was to pay periodic child support at the rate of $313 per week for each child together with their private school fees and expenses incidental to their private schooling, and any medical expenses which were not covered by private health insurance.
On 7 November 2008 the father filed an application seeking to amend the parenting orders to effect an arrangement whereby the children lived for one week with the mother and one week with the father. The parties conducted negotiations and attended mediation and on 10 December 2008, by consent, orders were made varying the parenting arrangements so as to increase the time that the father spent with the children to a total of six nights a fortnight to be spent in two block periods of four nights and two nights. In addition, although there was no application before the Court, the parties agreed to vary the child support departure order to reduce by 50% the amount of the periodic child support which the father paid for the children. The circumstances surrounding that agreement will be discussed later in these reasons in the context of the competing applications to vary the current child support arrangements.
On 11 May 2011 the father commenced the current proceedings, again seeking orders that the children live with each parent on a week about arrangement. In May 2012 the father amended his application to seek an order that the oldest child live primarily with him and spend alternate weekends with his mother.
The oldest child suffers from a medical condition which affects his appearance. The effects have increased as he has grown. He has had a number of admissions to hospital for procedures which ameliorate the changes to his appearance, most recently in 2012. In February 2012 he underwent a surgical procedure which was successful and which his doctors advised would probably need to be repeated in about six months.
The parties were unable to agree that the procedure should take place and the mother filed an application on 29 June 2012 for orders which would facilitate the surgery. That application came before the Court on 3 July 2012 and, at the commencement of the proceedings, the father informed the Court through his counsel that he consented to the procedure. However, the Court was nevertheless required to determine what arrangements should be made for the child’s care both before and after the surgery.
In relation to this application, it is the mother’s evidence that she did not tell H that the application was being made and that to this day he is not aware of it. That is greatly to her credit.
The Family Report of Mr L was released to the parties on about 3 August 2012 and shortly thereafter the father amended his application again to seek orders that the children live with him for six nights a fortnight in one block period and spend the remaining time with their mother.
THE ISSUES
When the matter came before the Court for hearing the children were spending time with the father in accordance with the 2008 orders. The structure of those orders, on the case of each of the parents, was unsatisfactory ending the four day period as they did, at 3.00 pm on Sunday. Both of the parties agreed that, whatever orders were made, the Sunday afternoon changeovers should be eliminated.
At trial, the issues for determination were these:
1.Should any parenting orders be made in relation to H who will be 16 in August 2013; and
2.What orders should be made for E and B to spend time with their father?
The parties agreed that the parameters of the dispute in relation to E and B were:
A.Orders could be made in accordance with the mother’s application that the children spend four nights with their father in the first week of each fortnight and one night in the second week (an overall reduction of one night per fortnight on the existing arrangements).
B.The existing orders could be continued.
C.The children could spend a block period with the father each fortnight for a lesser time than that for which the father contended, either four or five nights a fortnight.
D.Orders could be made in accordance with the father’s application that the children spend a block period of six nights per fortnight with the father and the balance of eight nights with the mother.
Each of the parties was asked to indicate their position in relation to those alternatives. The father’s position was that, if his application were not successful, he would prefer the existing situation to be maintained. The mother’s position was that, if her application were not successful, then she would prefer orders whereby the children spend a block period of four nights each fortnight with the father.
The contentions of the parties in relation to child support will be dealt with separately in these reasons.
THE ADJOURNMENT APPLICATION
The application for adjournment arose primarily out of evidence given by the Family Consultant, Mr L, in relation to B. Mr L interviewed the parties and the children on 9 July 2012. In relation to B, Mr L reported:
[B] (aged nearly 11) was distressed throughout most of his interview. When asked to try and express some of the things he was feeling inside he said, “I have a hundred giant things to think about”, “I don’t want to think about these things” and “I obviously can’t cope with it like the others”. When the family consultant wondered if it felt like as if his thoughts were coming in “crowds” he said “that’s when I start to cry”. The thoughts that promote these sensations and feelings, according to [B], are “Everyone fighting … it goes on and on”, “my parents arguing” and “not being a whole family”. Referring to the day of the interviews, he also said to the family consultant, with a mixture of surprise and pleasure, “this is the longest they have been together without fighting”.
On 25 July 2012 Dr A, B’s General Practitioner, had referred B for Cognitive Behavioural Therapy. Dr A’s covering letter to the therapist reads, in part, in relation to B:
He has had a pretty rough last couple of months prior to a family court proceeding. His parent’s separated when he was young and recent potential changes to living arrangements.
Happy to spend time alone, day-dreams and explores his own thoughts. Intelligent little man who rationalises things well. Creative thinker. Has been sad and does cry regularly. Paces when thinking on own. Few close friends.
I think he likely has simply an adjustment disorder with depressed mood on background of reasonably articulate/intelligent child. No FHx of mental illness. I have completed MHCP for him and appreciate your input and help.
In the document entitled “Better Access Mental Health Care Plan”, under the heading “Problem/Diagnosis”, Dr A had inserted the words “Adjustment disorder with depressed mood”. Under the heading “Mental Health Care Plan” Dr A notes the “Problem / Diagnosis” as “depressed mood/ sadness” and the goal as “improving functioning, coping skills”.
In his report Mr L noted that the mother advised that, in recent months, B had been “pacing more”, writing down in school that he was “depressed” and “calling out in the night when he has nightmares”. The mother noted that “[E] has been comforting him in the night”. Mr L noted:
[B’s] perception that his parents are always fighting and will never stop and his sense that he lives in a divided world, would seem to be, at the present time, the more salient factors with respect to his mental state.
Mr L went on to state that B at the present time “is too emotionally fragile to cope with what [B] would perceive, and experience as, a substantial change.” He suggested that:
the impact on him of being away from his mother for longer periods than he is already, would, at the least, be unpredictable and at the worst, anxiety inducing. It is suggested that [B’s] emotional needs and issues should be accorded a high priority in any determination of this matter.
On 27 August 2012, after Mr L’s report had been released, the parents agreed that B should attend counselling with a clinical psychologist Ms J. They entered into consent orders to facilitate B’s counselling with Ms J and those orders provided that the counselling would be confidential.
Much was made in the father’s substantive case of the fact that neither the general practitioner nor Mr L was qualified to make a diagnosis of B and that no diagnosis was before the Court. Mr L gave evidence that it was a common occurrence for him to receive similar referrals and that the symptoms which B displayed, if left untreated, could lead to more severe problems including major depression. While conceding that he could not make a diagnosis of B, Mr L expressed concern for B’s well being, based on B’s presentation to him rather than on any diagnosis.
Mr L in his report said:
The Family Consultant is also mindful, in this regard, that [B] has only recently commenced treatment for, what his GP suggests, maybe an “adjustment disorder with depressive mood” and, if this were to be the case, he might he may (sic) not be able to cope with major changes in his life at the present time. It is therefore probably worth considering continuing with the current arrangements for around six months while he undergoes assessment and treatment. If he is then in a less fragile emotional state, it might be worth considering parenting arrangements that allow [E] and [B] to continue to live with the mother for eight consecutive nights and with the father for six consecutive nights each fortnight – supplemented by their spending one or two evenings each week in the home of the parent with whom they are not living at any particular time.
In his oral evidence Mr L, noting that B is continuing in his therapy with Ms J, recommended that there be no significant changes to B’s arrangements during the course of the therapy.
Mr L was asked to read the most recent evidence of the parents about B’s presentation and to consider any recommendation in the light of that evidence. He said:
On balance, I would recommend against change, the reason being – and it’s rather self-evident – this little boy is in therapy. To assume that there’s not a problem, one would have to assume that the therapy is a meaningless event for him and that it serves no purpose. It – the psychologist must have assumed that there is something there to be treated, which would be the bottom line. As far as the father’s comments on his presentation, they don’t surprise me. He was having, clearly, a good time when most of the events that were described by the father. But that doesn’t, in my experience, exclude the possibility of him still being vulnerable to anxiety and depression. Anxiety and depression is not a permanent state that just stays there like a level sea forever. It tends to be up and down. It tends to be triggered by stressful events and, in fact, the best indicator is when a child or, indeed, an adult is put under situations of stress, where they go to their default position. And that is still, in my mind, a possibility with [B], though of course I would know not what the details of what the therapist is thinking about it. Certainly, he’s seeing a therapist.
Asked whether he would increase or decrease the time B spends with each parent, Mr L said:
I would be tempted not to do too much to any child with this presentation when, in my mind, there are still issues unresolved about his treatment and the progress of his treatment but which of course I know nothing other than he is still therapy.
Mr L was asked by counsel for the father whether he was prepared to have a further interview with B and he indicated that he could do so within four to six weeks but also said:
Because really the downside for this family is - there is an upside certainly in an update of [B] somehow, but the downside is they are then still in the context of a court case which, you know, self-evidently is hardly likely to culminate in increasingly harmonious relationships between the parents. And it’s a bit of a balance really.
Mr L was concerned that there was a possibility that B’s therapy could be undermined by a further interview with him and said that, generally, he would avoid children being involved in interviews when they were vulnerable but conceded that sometimes courts have to take those sorts of risks for the sake of achieving a decision.
Mr L was critical of what he saw to be the “mathematising” of children’s time and stressed that the importance for children is not the number of nights they spend with a parent but a meaningful relationship based on activities with a parent. He stressed that the development and maintenance of a child’s relationship with a parent depends on what they do when they are awake not whether they sleep at the home of one parent or another.
Mr L gave evidence that, for the children, the difference between an arrangement where they spend six nights each fortnight with their father and an arrangement where they spend five nights “is going to be marginal”.
At the conclusion of Mr L’s evidence an oral application was made on behalf of the father in the following terms. Firstly, that the hearing be adjourned to allow Mr L to reinterview B and, I infer, a further report be prepared by Mr L. Secondly, that the orders of 27 August 2012 in relation to the therapy with Ms J be varied to allow the parties to have access to and to tender any report made by Ms J to the General Practitioner in relation to the progress of B’s therapy. No notice had been given to Ms J of this application. Both applications were opposed by the mother.
The mother in her affidavit sworn on 8 April 2013 sets out a conversation which took place with B on 21 March 2013. B said to the mother:
When we were coming back from [Ms J’s], Dad asked me how I would feel about going to [Mr L] again. He talked about my meltdown the last time I went to see him and asked me whether I thought I would be OK this time, and then Dad asked me how I would feel about one week living with him and one week living with you.
In response to the mother’s inquiry about how B would feel about that B said:
I told him I thought I wouldn’t cry all the time like last time if I had to see [Mr L] but I’d still cry. I told dad I didn’t want to do it because there is so much tension between him and you.
In considering the application for the adjournment, the children’s interests, and particularly the interests of B are paramount. In determining the application I have considered the following matters:
1.I accept the evidence of Mr L that the significance of the block periods being between six and four nights is minimal for the children (although I accept crucial for the father).
2.The evidence is that the parties and the children have been in the current (and third) round of litigation since May 2011 and, at least, the mother and B are stressed.
3.B is distressed at the notion of being re-interviewed by Mr L.
4.Mr L expresses concern that B’s progress in therapy might be adversely affected if he were re-interviewed.
5.B’s therapy is in progress and the only evidence of its likely course is the evidence of the mother that she expects the referral to Ms J to be extended for a further year.
6.The proceedings would necessarily be delayed for many months in order for dates to be found when the hearing could resume. In this regard I note that when the possibility of adjourned dates was discussed, at an earlier stage of the proceedings, counsel and solicitors for both parties were variously unavailable for July, August and September 2013.
7.A further interview of B may not produce any evidence that takes the matter beyond what Mr L is able to conclude at the present time.
Weighing all of those considerations. I am of the view that an adjournment of the proceedings is not in the interests of the children. Because the proceedings will not be adjourned, it is not necessary to consider the application to vary the consent orders of 27 August 2012 in relation to the confidentiality of Ms J’s notes except to observe that I would not have heard and determined that application without hearing evidence from Ms J.
WHAT ORDERS SHOULD BE MADE IN RELATION TO H?
H is 15 years of age and will be 16 in August 2013. He is in Year 10 at school. The mother’s evidence is that H has an open and honest relationship with her, that he talks to her, that he travels independently around the city to visit friends and attends sport training in Suburb I and that he takes care to let her know his plans and to keep in mobile phone contact with her. The mother gave evidence that she believed that H had a similar relationship with his father. The mother’s evidence in that respect was unchallenged. The mother was of the view that there should be no formal residence orders in relation to H having regard to his age.
The father sought orders that H live with him for six days of each fortnight and that those orders should continue until such time as H reached the age of 18 years. It was the father’s evidence that H is a warm and emotionally sensitive child, that he is happy and optimistic most of the time and that he is confident of his own ability.
The father was concerned that, in his mother’s household, H is not sufficiently disciplined in relation to his study habits. The father gave evidence, unchallenged, that H’s Term 2 report in 2012 was disappointing and that H had acknowledged in conversation with the father that he was not studying effectively. H also confessed to his father that he had skipped school, pretending to be ill, because he had not completed homework over the previous weekend. The father says that he, appropriately, prepared with H a list of guidelines to follow and improve to manage his study and also liaised with H’s tutor so that the school could counsel H and monitor his progress. It is the father’s case that H needs close attention and guidance in order to ensure that he makes the most of his opportunities and the father does not believe that H receives sufficient attention and supervision in the mother’s house.
In his interviews with Mr L for the purpose of the preparation of the Family Report the father said that his application for H to live primarily with him (as it was at that time) was primarily school related. He stressed that he was more vigilant with respect to monitoring homework. The father told Mr L that H’s marks were steadily declining and the father believed that this, in part at least, could be attributed to the lack of supervision by the mother. The father told Mr L that he believes that H stays up late texting his friends when he is living with his mother and that this is affecting his school performance.
The mother told Mr L that in her view the father places too much pressure on the children in relation to their educational performance.
Mr L in his oral evidence expressed the view that the positions adopted by each of the parents, although different, were equally valid.
In his report Mr L said, in relation to H:
The parents and the Court might consider the advantages to [H] of there being no court orders with respect to him, in that this would allow him the flexibility to benefit from the input of both of his parents in a way that would be consistent with his prevailing and rapidly changing needs and interests. Furthermore (sic) suggested that Court orders might not be necessary with respect to [H] as, for the most part, [H] would be likely to, of his own volition, want to spend time in each parent’s home in line with his siblings.
Mr L goes on to say:
With respect to [H], as previously mentioned, it is suggested that court ordered parenting arrangements could, in the Family Consultant’s view, be inconsistent with the major developmental tasks of mid to late adolescence. Also a fixed parenting schedule might not be consistent with his emerging and expanding need to engage with his peers across a range of activities in a flexible manner.
In his oral evidence Mr L expanded upon his recommendation that there be no orders in relation to H. He said:
….(arrangements for [H]) does need to be really weighed against his age and his developmental needs. He already has, due to his condition, special needs to be seeking autonomy and independence, and the capacity to look after himself, to be further enjoined by orders which order him, as far as his relationships with his mother and father are concerned, might only serve to compound that problem. I’m also of a view that, irrespective of orders, [H] is going to want to spend substantial amounts of time with each parent. I’m also bearing in mind his age. He is not that far off his age of majority, really, and so orders would only, probably, have a comparatively short shelf life.
Mr L did not agree with the proposition that H would be protected by orders which remained in place until Term 1 of 2014.
In answer to the proposition that the absence of orders would be an inappropriate empowerment of H, Mr L said:
I’m not sure whether there isn’t an inherent contradiction in something called an inappropriate empowerment of a boy of his age, who is bordering on adulthood. One would have to ask, when does inappropriate empowerment stop?
There is no suggestion that, in the event that there were no orders which related to H, his time with either parent would be substantially different from that of the other children. Mr L commented that H does not wish to experience different parenting arrangements from those of his siblings and H indicated that he was content with the present arrangements. The mother gave evidence that she would anticipate that, in the event that no orders were made in relation to H, he would continue to go with the younger children to his father’s home. Nothing in the father’s case suggested that in the event that there were no orders in relation to H, his time in his father’s household would be reduced.
Both parents recognised that H will increasingly wish to make his own arrangements in relation to where he spends his time and particularly the time that he spends with his friends and out of his parent’s households. The mother was of the view that H would continue to make his social arrangements in consultation with the parent in whose home he was living at the time and that this was an appropriate amount of responsibility to be given to a child of H’s age.
The father’s position was that if H were not mandated by court order to live with a particular parent at a particular time then his social arrangements would “slip between the cracks” and it may be the case that neither parent would know where H was at any given time. I do not accept that submission. As the mother said in her oral evidence the parents will continue to have shared parental responsibility for H and will continue to be responsible for his supervision.
The father’s position was not supported by Mr L and I accept Mr L’s evidence that no orders should be made in relation to H.
PARENTING ARRANGEMENTS FOR E AND B
It was common ground between the parents that E is an intelligent and robust child who would cope well with any arrangement within the parameters of the applications before the Court. E told Mr L that she did not really mind what the arrangements were except that she found the Sunday afternoon changeover to be difficult. Mr L observed:
Of the three subject children, [E] appears to be the most resilient and the least effected (sic) by the parent’s issues. She appears to be quite objective about what each of her parents can offer by way of meeting her physical and emotional needs and interests. She does not appear to be overly focused on, or engaged with, tensions between the key adults in her life or preoccupied to any significant degree with her parents issues as individuals. There would not appear to be any obvious reason why, provided that she spends substantial time each (sic) of her parents, her comment that she does “not really mind what we do” should not be taken at face value.
Mr L, however, was of the view that the arrangements for E and B should primarily be based on B’s needs. In his report Mr L said:
[B] would seem to be the most effected (sic) by the conflict between his parents and possibly by other factors that are only likely to be revealed in the context of a therapeutic relationship. Although his parents have, to their credit, made every effort to shield [B] from overt conflict, nevertheless, his subjective reality is that everyone (i.e. the key adults in his life) is ‘fighting’ and that the fighting will never end.
In relation to the father’s proposal at the time of the interviews for the Family Report that E and B live with the parents on a week about basis, Mr L said:
The Family Consultant is of the view that this would be a viable option for [E] but not for [B] at the present time. Currently, he appears be (sic) rather too emotionally fragile to cope with, what he would perceive to be, and experience as, a substantial change. It is also suggested that the impact on him of being away from his mother for longer periods than he is already, would, at the least, be unpredictable and at the worst, anxiety inducing. It is suggested that [B’s] emotional needs and issues should be accorded a high priority in any determination of this matter.
Neither the parents nor Mr L suggested that there should be different arrangements for E and B and accordingly the arrangements which will pertain to those two children will be the arrangements which will best suit the needs of B.
There is no doubt that each of the parents fully understands that benefit to the children of having a meaningful relationship with each of their parents. The father conceded, properly, that the children currently have a very good relationship with him, with their stepmother and with their little brothers and that the strength of that relationship is not likely to be affected by any contemplated change in the arrangements for their spending time in his household. Each of the parties gave evidence that the other encouraged the children’s relationship with him or her and the Court would have no concern that, whatever the arrangements are for the children to spend time with each parent, they will continue to have the benefit of their current excellent relationship with both of them.
The parameters of the dispute in relation to the children’s time are narrow. At their most extreme the children will spend with their father, either a block period of four nights each fortnight, or a block period of six nights each fortnight. I have already referred to Mr L’s evidence as to the minimal significance to the children, except in relation to the amount of time B spends away from the mother, of the difference in the proposals of the parents.
E’s views, in relation to the time she should spend with each of her parents as canvassed by Mr L, have already been set out. B did not express to Mr L any views about where he would like to live.
In a conversation with his mother on 6 April 2013, B said to his mother:
At (the stepmother) and Dad’s house it is like an antique wooden bridge, very beautiful, which when you look at it you feel safe and fine but if you step on (sic) loose plank, you will fall a long way down. So you have to make sure that next time come you try and not aggravate things or annoy anyone. At dad’s home, when I hear that (the stepmother) has been really stressed during the week, I worry something will go wrong. Every time I make a mistake even when I am told it is finished and taken care of it doesn’t feel like it is, there are still remnants of it. I can tell most especially in the person’s voice –in their tone. They are trying to be kind but they are really annoyed with me, I know its there but I don’t know why the person is annoyed at me. Sounds mean to say I prefer to be here, I don’t want to sound mean. With you it feels like a stone bridge, and like marshmallow when I fall down, falling might be uncomfortable, but the landing is not uncomfortable, but the landing is not uncomfortable.
B told Mr L that he finds it easier to talk to his mother because he feels that “dad might get angry”. Mr L noted that it is important that B did not say that his father actually gets angry. B also said “mummy’s always nice to me”.
Having regard to B’s statements both to Mr L and to his mother, I infer that B’s preference is to spend time in his mother’s care. This is not surprising having regard to the fact that the parties separated when he was two years old and she has been his primary carer.
When considering the nature of the relationship of the children with their parents, their stepmother and their little brothers, Mr L talked not only to the children and the parents but also to the nanny who is employed in the father’s household and has cared for the children when they were with him for a period of some four years. She expressed the view that “[B] is very, very, close to his mother”. Both H and E commented to Mr L on the closeness of B’s relationship with his mother. H had told Mr L in relation to B “he really likes mum” and that the mother worries about how B would cope with being away from her for extended periods. E initiated a conversation about B with Mr L and described B as “more a mother’s boy”.
In relation to her own relationship with her mother E told Mr L that, if she is worried about something she finds her mother easier to talk to. Of her relationship with her father she said that with respect to school work or sport she would go firstly to her father and then added that if she needed help with English she would seek help from her mother.
Having regard to all of these matters I find that E has a strong relationship with each of her parents but that B’s primary attachment and primary need is for his mother.
Each of the parents gave evidence that the other had facilitated and encouraged the close and continuing relationship between the children and each parent.
It is clear from her unchallenged evidence that the stepmother has done everything she can to fulfil her role appropriately and with proper regard to the mother’s position in the children’s lives and that she has done her utmost to encourage the children’s relationship with their mother and with their little brothers.
The likely effect of any changes in the children’s circumstances is important in these proceedings.
In the course of the interviews the nanny told Mr L that B does not frequently show obvious signs of distress but she noted that “the really big thing with [B] is change”.
Mr L in his oral evidence, as I have already set out, expressed reservations about making changes to B’s arrangements.
The practical difficulties inherent in any of the arrangements which are available are minimal. Although the evidence of the mother is that she will shortly be obliged to sell the home in which she lives, which is within walking distance of the father’s home, she gave evidence that she would hope to rent premises within sufficient proximity to the father’s home that they could catch a bus between the two houses and to and from school. The parents have managed to share the care of the children between them since 2006 with minimal practical difficulty. The primary difficulty to which the father alludes in his evidence is that the children from time-to-time come to his home without all of the equipment, clothing or school material that they may require for the period whilst they live with him. Given that the children are 15, 13 and 11 that might be a matter in which both of the parents could encourage the children to take more responsibility.
The father’s application to the effect that the time the children spend with him should be in one block of time each fortnight is based in part upon this issue.
The father also, in seeking to have a block of time with the children each fortnight, suggests that he would then better be able to provide for their educational needs in that, he says, he can provide a more stable and more organised environment conducive to the children’s completing their educational requirements. The father argues that he is better able to foster the children’s educational and intellectual needs than is the mother because his household is more ordered.
There is no doubt that each of these parents has a different parenting style. However, the father conceded in cross-examination that they had common values, they had each made the most of excellent educational opportunities and career opportunities. He agreed that they both valued work and the role of a career in the life of an adult. He agreed they were both successful and they both wanted what was best for their children. He also conceded that the mother was ideally placed to assist the children’s academic activities, she having tertiary and post graduate qualifications from Australian and English universities. She also has training in singing and music.
Mr L in his report said, in relation to the different parenting styles:
The family consultant gained the overall impression that (the father) and (the mother) are both committed, loving and capable parents whose proposals with respect to parenting arrangements are motivated primarily by their genuinely held perceptions of the children’s needs and how best to meet these needs. Nevertheless, and perhaps underpinned by the respective family of origin experiences and personality differences, they do have somewhat different perceptions of some (sic) the children’s needs and how best to meet them. (The father) emphasised the need for order, routine and supervision – especially, but not only, in the context of improving and maintaining the children’s educational performance. (The father conceded that this was a fair summary of his conversation with [Mr L]). That is not to say that he is unaware or inconsiderate at the children’s emotional needs. (The mother) emphasises the need for emotional expressiveness, connectedness and empathy with respect to parent-child relationships within a less structured home context, whilst still recognising the importance of educational attainment. In the family consultant’s view it is not possible to evaluate these differences between the parents, at least from an evidence based perspective, other than to observe that they both have merits.
Mr L did not share the father’s view that H’s academic performance in 2012 diminished as a result of the lack of supervision in the mother’s home but expressed the view that H’s compromised school results could just as likely be primarily attributable to emotional and logistical challenges relating to his medical condition and treatment, as well as to the impact upon H of the tension between his parents.
I accept the evidence of the Family Consultant. I find that there is no evidence that the father’s proposal, that the children spend a six night block with him in each fortnight, will have any effect on their educational or intellectual achievements or that it will be more beneficial for the children than spending time in a different arrangement or a block of less time with their father.
The father was of the view that fewer changeovers would be of benefit to the children. His proposal would see all changeovers taking place to and from school. The mother did not share that view although she conceded that if the father were to spend a block period with the children then changeovers to and from school would be appropriate. Mr L was of the view in his oral evidence that changeovers should be minimised. The father’s proposal for the children to spend only one block of time with him would have that effect.
As recently as Easter of 2013 the mother has been distressed at changeover in circumstances where she had a conversation with the father at the same time as the children were unloading their belongings from her car. Whether or not it was objectively reasonable for her to be distressed having regard to the conversation which took place between them is irrelevant. The mother gave evidence that her exchange with the father made her anxious. It cannot be of benefit to the children for changeovers to occur in an environment where the mother is anxious and therefore the orders should ensure that changeovers take place entirely to and from school.
Although the parents will retain shared parental responsibility for the children neither seeks an order for equal shared time. Mr L was of the opinion that equal shared time would be a viable arrangement for E but not for B and, sensibly, both of the parents have accepted his view in that regard. It would not be appropriate, accepting his evidence as I do, for that reason alone to make an order for equal shared time.
It is however, appropriate to make an order that the children spend significant and substantial time with each of their parents and on any of the outcomes available to the court they will do so.
The attitude to each of the parents towards the other is problematic. The father is critical of the mother’s emotional closeness to H and B.
In relation to H, the father’s discussions with Mr L lead Mr L to explore the possibility of H’s having an enmeshed relationship with his mother and to conclude:
Whilst being close to both of his parents, [H] seems to have a special bond with his mother. It would seem likely that their closeness has been accentuated by (the mother’s) involvement in his health issues from both a logistical and emotional perspective. In the family consultant’s view their closeness is likely to be a normative and natural consequence of this shared experience and should not be labelled as enmeshment in any pathological sense. A measure of pathological enmeshment would be some degree of withdrawal from school and peer activities which is not the case with respect to [H]. Irrespective of causation, in the family consultant’s view and given his evident close bond with his mother, [H] would be likely to be unsettled by prolonged separation from her (as would occur if he were (sic) spend time with her on one weekend a fortnight) and this in turn would be likely to negatively impact on aspects of his development – including educational attainment.
Mr L also considered the possibility of enmeshment in relation to B’s relationship with his mother. In his report Mr L says:
(The father) seems to believe that [B’s] relationship with his mother is characterised by a degree of unhealthy enmeshment. It is suggested that, in this regard, even if this were to be an accurate assessment, children in an enmeshed relationships with a parent are more likely to experience a significant sense of loss and abandonment when separated from that parent, then children in a more balanced parent child relationships. It is noted that there were no indications, based on these interviews and observations, that enmeshment is a feature of [B’s] relationship with his mother.
In cross-examination the father said that he had described to Mr L a scene which he had witnessed which suggested an unusual closeness between B and his mother which did not seem normal. He conceded that there was no evidence in his affidavit of those observations. Although the father accepted Mr L’s finding that there was no indication of an enmeshed relationship he said, of the relationship between B and his mother, “I don’t think it’s a normal thing”. The father described an occasion when B, being dropped off on Sunday by his mother at his father’s home, was given a big kiss, another kiss and a cuddle by his mother. The mother agreed that she would usually give B kisses and cuddles. It is of some concern that the father would interpret that sort of emotional interaction between the mother and an 11 year old child as being abnormal.
Each of the parties is quick to take offence in communication with the other. Without reviewing all of the email correspondence between them, and it was agreed that in 2012 the printed email correspondence filled two lever arch files and that there had been in excess of 600 emails, it was clear that each of them was from time-to-time able to take offence at communications which, objectively, were inoffensive. Equally there were times when the father’s communications with the mother were offensive and for a period of time in 2010 the mother refused to accept email communications from the father.
The mother gave evidence of being stressed and anxious as a result of conversations with the father which were, on any version of them, objectively benign. When asked, by counsel for the father, what steps she had taken to address her anxiety arising out of both verbal and written communication with the father she said that she had not sought counselling to address that problem although she conceded that it was likely that her anxiety would have an impact on the children. She did not concede that reducing the number of changeovers and the number of occasions upon which she was required to be in face-to-face contact with the father would reduce her anxiety and consequently the impact upon the children.
Mr L, in commenting in his oral evidence about the difficulties in the parents’ communications being a factor mitigating against an equal shared care arrangement said:
I’m talking about the factors that have been assessed contribute to a viable equal time arrangement are mostly drawn from the institutor (sic) of family studies – assessments over a fairly prolonged period. What they promote is not just the absence of conflict but they say that a viable equal time arrangement requires an actively positive, flexible relationship between the parents wherein they hold each other in high regard, respect each other’s parenting practices, whether they be the same or different – by the sort of anecdotes that usually accompany the institute’s studies would have the parents living close by, them being able to pick up the phone and say, I’m little bit late at work, would you mind picking up the children from school and so on. You know, there’s active, positive relationships. There’s a quite a myth out there, I think, that the absence of conflict is sufficient to the tasks of equal time co-parenting, and I don’t think that’s supported by the available evidence.
CONCLUSION
In considering the arrangements which would best suit the needs of the children the strongest emphasis must be placed upon B’s welfare. I accept the evidence of the father and Mr L that it would be preferable for these children to have less changeovers and therefore that they should spend a block of time each fortnight with their father. I accept the evidence of Mr L that a block of six days with the father would be more than B could tolerate. Mr L’s evidence was that B could tolerate a period of four or five days and I therefore propose to make an order that the children spend five days each fortnight with their father, those days to span a weekend. I consider that this arrangement minimises the reduction in the time the children spend with their father while remaining consistent with B’s need to be in the primary care of his mother.
Each of the parties sought orders in relation to special occasions and it was not disputed that the parents would continue to share school holiday periods with the children. In relation to the special occasion orders there was no cross-examination or opposition and I propose to make the orders which were sought by the mother in relation to Mothers’ Day, Fathers’ Day and birthdays and the orders which were sought by the father in relation to the birthdays of the children’s little brothers.
CHILD SUPPORT
There are two competing applications before the Court in relation to child support. The father seeks an order to vary the existing child support order, varied by departure order in 2008, so that the amount payable by him by way of periodic child support is nil.
References to legislation in this portion of the reasons are to the Child Support (Assessment) Act 1989 (Cth).
the father’s application for a departure order
The father’s application is to reduce to nil the amount of periodic child support which he pays for the subject children while continuing to pay their private school fees. The evidence is that the father pays a total of $88,868 per annum for school fees and extras and presently pays $29,536 per annum by way of periodic child support for the three children.
The grounds for departure order are set out in section 117(2) which is set out in full below.
The meaning of the words “in the special circumstances of the case” was definitively dealt with in the decision of the Full Court in Gyselman and Gyselman (1992) FLC 92-279 to which counsel for the father referred the court.
Their Honours said, at 79,065:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, ``in the special circumstances of the case''. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said that ``special circumstances'' were ``facts peculiar to the particular case which set it apart from other cases''. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
The special circumstances in this matter are said to be:
1.The subsequent birth of a child to the husband and the stepmother.
2.The significant increase in the income of the respondent.
3.The increase in school fees payable now that all of the subject children are in high school.
4.The school fees now payable for the father’s child, born before the date of the order sought to be varied.
It is inherent in the father’s submission that his re-partnering, the birth of children in his new relationship, the fact that school fees for the subject children have increased and the fact that the father is now paying school fees for the children of his second relationship are in some way to be considered special or out of the ordinary. I do not accept that submission. In the usual course of events parents re-partner and children are born in those new relationships. Indeed the Child Support legislation itself recognises that adjustments have to be made having regard to the commitments of liable parents to support other children.
The submission that the increase in the income of the respondent constitutes a special circumstance is, similarly, not a circumstance which is special or out of the ordinary expectation of parties in the position of these parties. The increase is modest.
Tendered in the proceedings was a schedule of the relative taxable incomes of the father and the mother for the financial years 2008 – 2012 inclusive which is set out below:
SCHEDULE OF TAXABLE INCOMES
TAKEN FROM PERSONAL TAX RETURNS
Year Husband Wife
2008 $1,473,065.00 $367,642.00
2009 $706,086.00 $386,523.00
2010 $867,789.00 $125,238.00
2011 $957,432.00 $408,306.00
2012 $602,173.00 $384,359.00
It will be seen that in the year 2008 the mother’s taxable income was $367,642 per annum whereas in the financial year ended 2012 her income has risen to $384,359 per annum. I do not consider this increase to be of such significance as to constitute special circumstances. The submission also ignores the fact that the father’s current wife has an income of some $561,000 per annum. Insofar as the father has obligations to support his two younger children and pay school fees for one of them, and a nanny for the other, she is well able to contribute to those expenses.
In all of the circumstances I do not consider that the father has established that the facts of this case are so special or out of the ordinary that it is appropriate to revisit the orders which were made and therefore his application will be dismissed.
the mother’s application
The mother seeks to vary the child support departure orders made on 10 December 2008 so as to increase the amount which the father pays pursuant to those orders from 1 January 2009.
Because the orders which the mother seeks to vary are more than 18 months old, the leave of the court is required pursuant to section 111.
The matters to be considered in determining whether to grant leave are set out in section 112(4) of the Act. The Court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
The Court is permitted to entertain the applications because there is pending in the Court an application relating to parenting. Both parties submit that the Court would be satisfied that it would be in the interests of both of the parents to consider whether or not the child support issues should be dealt with at the same time as the parenting proceedings and in those circumstances I am satisfied that this is appropriate.
Therefore the procedure, in relation to the mother’s application, is firstly to consider whether leave should be granted having regard to the matters set out in section 112(4). In the event that leave is granted then, in relation to both of the applications of the mother and the father, the Court must be satisfied that in the special circumstances of the case one or more grounds for departure as set out in section 117(2) of the Child Support Assessment Act exist and further, that it would be just and equitable as regards the child, the carer and the liable parent and, otherwise proper, to make an order.
The provisions of section 117 are set out hereunder.
Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.High costs involved in enabling parent to care for a child
(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:(a) the costs are incurred by a parent or a non‑parent carer; and
(b) the child is younger than 12 at the start of the child support period.(3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.(3C) Child care costs for a non‑parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(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.(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.Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.…
Once a valid application for departure has been made, the Court is able to consider departure from the administration assessment provisions for such time into the future as it considers appropriate having regard to the individual circumstances of the case (Best & Best (1993) FLC 92-418, Dwyer & McGuire (1993) FLC 92-420). As their Honours stated in Best & Best, this “avoids the highly undesirable position that the parties have to reapply each twelve months notwithstanding that the relevant circumstances which originally attracted s.117 remain the same.”
SHOULD THE MOTHER BE GRANTED LEAVE
The orders from which the mother seeks to depart are orders which were made by consent on 10 December 2008. The effect of those orders was to reduce by 50% the periodic child support which the father paid for the children whilst leaving in place orders which required him to pay school and medical expenses.
It is common ground that in July 2008 the father commenced an application seeking to vary the parenting orders and specifically the time which the children would spend with each parent. No orders were sought in the father’s application in relation to child support and therefore no financial material was filed by him or by the mother. It was the father’s evidence that in circumstances where, he said, the mother declined to provide financial disclosure, he chose not to provide her with any financial information. The parties entered into negotiations and attended mediation and ultimately reached an agreement which included a variation of the existing child support arrangements. That agreement was embodied in consent orders which were ultimately made by the Court on 10 December 2008.
It is common ground that in the negotiations leading up to consent orders relating to child support there was no formal financial disclosure. On 20 May 2008 the father sent an email to the mother in relation to child support. The email read in part “however, if you use the child support calculator and assume your income is 300,000 (which is a guess) and mine is 750,000 (which it is not), the amount due would be zero.” The only reasonable inference to be drawn from the father’s email is that he asserts his income is less than $750,000.
At the time of the trial before O’Ryan J in 2005 the income of the father was $549,000 and he was working for four days each week.
Evidence before the Court in these proceedings indicates that in the financial year ended 2008 the father’s actual taxable income was $1,473,065 and the mother’s actual taxable income was $367,642.
The mother’s unchallenged evidence is that, if she had known that the father’s taxable income in 2007/2008 was not less than $750,000, as he represented, but $1,473,065, she would never have consented to a variation of the child support orders in December 2008.
The father in cross-examination conceded that at the time the consent orders were made to vary the child support he was aware that his income for the financial year ended 30 June 2008 would be more than $1 million and that he knew, prior to the making of the orders in December 2008 that his income would in fact be in the region of $1.4 million. He conceded that he could have provided this information to the mother but did not do so.
The mother’s application to vary the orders of 10 December 2008 was contained in her response filed 14 September 2011. She filed in response to the father’s application seeking to vary periodic child support to nil which was filed on 18 May 2011. Thus the mother must explain her delay between 10 December 2008 and 14 September 2011.
The mother’s unchallenged evidence is that she first discovered that the father’s income was not as he had represented, on 6 July 2011. I consider that the delay in instituting proceedings is adequately explained. The mother could not have been expected to seek to vary the 2008 orders until she was aware that the father had misrepresented his income. That the misrepresentation was so substantial adds to my comfortable satisfaction that her explanation is acceptable.
In considering that aspect of the matter, it is instructive to look at the objects of the Act as set out in section 4.
Objects of Act
(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
(a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
(3) It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a) to permit parents to make private arrangements for the financial support of their children; and
(b) to limit interferences with the privacy of persons.
Any consideration of leave to institute proceedings for a retrospective variation of child support must be made under the overarching direction of the objects of the legislation.
The father’s failure to disclose his real income had the effect that the level of support for his children was reduced from 2008 to date.
Having determined that the mother should be granted leave, her application falls to be determined pursuant to the provisions of section 117 which, in section 117(1)(a) requires the Court to consider the matter against the “special circumstances” of the case. I consider that the father’s actions in 2008 whereby he misrepresented his income by a factor of almost 50% would, taken alone, constitute special circumstances.
Each of the three steps mandated by section 117(1)(b) must be addressed separately.
has a ground for departure been established
The grounds for departure are set out in section 117(2). I consider that, because of the father’s income earning capacity, as set out above in the Table, the application of the administrative assessment to determine the quantum of child support would result in an unjust and inequitable determination of the appropriate level of child support to be provided by him. This fact is tacitly admitted by the father in that he concedes that it is appropriate for him to pay the children’s private school fees and extras.
is it just and equitable within the meaning of section 117(4) to make a particular order
It is not disputed that each parent has a duty to maintain the children.
The mother’s evidence of the proper needs of the children was not challenged. She was robustly cross-examined about the reasonableness of her own expenses but not about the expenses she incurred for the children. A challenge was made to the provision of Foxtel but I do not find that expense excessive. The evidence of those expenses is, however, limited to the periods covered by her two Financial Statements filed 14 September 2011 and 8 April 2013. Those Financial Statements cover the period from 1 July 2011 to 30 June 2013. I accept her evidence of the proper needs of the children in her care for the period commencing 1 July 2011 to 30 June 2013.
There is no evidence of the proper needs of the children for the years 1 July 2009 to 30 June 2010 and 1 July 2010 to 30 June 2011. I therefore cannot make a departure order for those years and the amount payable by the father for those years cannot be varied.
I find that the proper needs of the children in the care of the mother, in the relevant years, on a weekly basis, are as follows:
1.Financial year ended 30 June 2012 in accordance with the mother’s Financial Statement filed 14 September 2011:
Expenses set out in Schedule A $1,586
Mortgage payments, rates, insurance and
car expenses - $1,784 – allow 66% $1,177
Total$2,763
Annual $143,676
2.Financial year ended 30 June 2013 in accordance with the mother’s Financial Statement filed 8 March 2013:
Expenses set out in schedule A $166,751
I have not allowed, as part of the calculation, the amounts claimed for credit card expenditure as those amounts represent payment for expenses already allowed.
The father, in his Financial Statement sworn 4 April 2013 calculated the cost of care of the children in his household for six nights each fortnight (not including school fees) to be $1,724 per week or $89,648.
In his Financial Statement sworn 24 August 2012 the father calculated his care costs excluding school fees to be $2,049 per week or $106,548.
The mother earned income for the relevant periods. As was established in cross-examination, she does not have an excess of assets over liabilities.
In the year ended 30 June 2012 the mother’s taxable income was $384,359. The father’s taxable income was $602,173. The mother included in the children’s expenses a proportion of her costs in housing them. The father did not. Accordingly it is appropriate to deduct from his income a proportion of his mortgage expenses. His annual mortgage payments are $138,788 (noting that his wife pays a proportion of the mortgage in addition to that which he pays). I propose to allow 66% of that amount or $91,600 as the amount referable to the housing of the subject children. I do not propose, for the purpose of this exercise, to make any further adjustments based on their respective expenses, other than those directly related to the children. Each is entitled to spend his or her considerable incomes as he or she chooses.
In the 2012 financial year, after deducting the school fees and extras of $88,868; the cost of caring for the children in his home of $106,548 and the cost of housing the subject children of $91,600, the father has a taxable income available for the payment of periodic child support of $315,157. The mother’s available income for the same year was $384,359 and after deducting the costs of caring for the children, the mother has an income of $240,683.
In the financial year ended 30 June 2013, the mother’s taxable income, based on her Financial Statement sworn 5 April 2013, will be $413,452. Thus, the mother’s taxable income net of child expenses for the financial year ended 30 June 2013 is $246,071.
In the financial year ended 30 June 2013 the father’s taxable income, based on his Financial Statement sworn 4 April 2013, will be $602,160. His mortgage payment is $1,424 per week, or $74,048, and 66% or $48,872 will be allowed as the cost of housing the children. Thus, the father’s income after deducting school fees and extras of $88,868; the cost of caring for the children in his home of $89,648 and the cost of housing the children of $48,872 is $374,772.
In the circumstances, particularly that the father’s salary is significantly higher than the mother’s, both before and after child expenses are taken into consideration, and that the children spend the majority of time with the mother, it is reasonable that the father contribute to the mother’s costs in caring for the children. In the circumstances of the case I find it appropriate that the father pay 35% of the mother’s costs of care, which equates to $50,286.60 for the financial year ended 30 June 2012 and $58,362.85 for the financial year ended 30 June 2013.
However, the mother seeks an order that in the financial year ended 30 June 2013 and following the father pay $343.33 per child or $53,559 and I propose to limit his liability to that sum for the year ended 30 June 2013 and the following years.
is it proper within the meaning of section 117(5) to make the order
Both of the parents earn high incomes. Both expect that their children will be raised in a standard and style that is commensurate with the income earning capacity of the parents. They expect the children to be educated privately, cared for by a nanny when the parents are not available, to travel internationally and generally to enjoy a high standard of living in both of their households.
While the income of the father’s wife has not been taken into account in determining his financial contribution to the children’s care, it cannot be ignored that her income exceeds that of the mother and that the combined income of the father’s household is in excess of $1.16 million. I consider that her income can be taken into account in the consideration of the propriety of the orders I would otherwise make, the amount of her income constituting a special circumstance for the purpose of section 117(7)(b)(i).
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 May 2013.
Associate:
Date: 10 May 2013
Key Legal Topics
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Family Law
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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