GRESHAM & GRESHAM
[2018] FamCA 286
•3 May 2018
FAMILY COURT OF AUSTRALIA
| GRESHAM & GRESHAM | [2018] FamCA 286 |
| FAMILY LAW – CHILDREN – Where the parties consent to having equal shared parental responsibility – Where it is not in the children’s best interests to spend time with both parents on an equal time basis – Where orders are made for the child to live with the father and spend significant and substantial time with the mother – Where both children have a close and loving relationship with the mother which will be able to be maintained by spending regular time with her – Where the proposed order minimised the risk of the children being exposed to conflict and certain erratic and impulsive behaviour. FAMILY LAW – CHILD SUPPORT – Enforcement – Where the father seeks to enforce an outstanding child support debt due by the mother by selling certain identified property in the mother’s possession – Where the Court is satisfied that the Child Support Registrar has been served with the application and does not oppose the enforcement – Where the mother does not oppose enforcement but seeks an alternative proposal to repay the debt –Where the mother is given a further opportunity of 45 days to pay the debt before an enforcement warrant will be issued for the seizure and sale of certain property. FAMILY LAW – CHILD SUPPORT – Child support departure application – Where the father seeks that the Court make an order departing from administrative assessment of child support to be paid by the mother –Where the Court is satisfied that the Child Support Registrar has been served with the application – Where in the special circumstances of the case there are grounds for departure – Where the Court orders that the administrative assessment provisions be departed from and fixed at $12,662 per annum, payable by the mother – Where the father’s child support assessment will be nil. |
| Child Support (Assessment) Act 1989 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Babbit & Babbit (2011) 46 Fam LR 77 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Ms Gresham |
| RESPONDENT: | Mr Gresham |
| INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
| FILE NUMBER: | BRC | 10362 | of | 2013 |
| DATE DELIVERED: | 3 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 9 - 11 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gunn (direct brief) |
| SOLICITOR FOR THE RESPONDENT: | Mr Evans of Evans & Company Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Order
By consent
The father and the mother shall have equal shared parental responsibility for all major long term issues (as that term is defined in section 4 of the Family Law Act 1975 (Cth)) which relate to the children B born … 2008 and C born … 2012 (the children).
It is further ordered
The children live with the father and spend time with the mother at all times as may be agreed between the parents and failing agreement as follows:-
(a)during school terms, commencing on the first week of the school term, each alternate week from the conclusion of school on Wednesday until the commencement of school on the following Monday (or, if Monday is a public holiday or pupil free day, until the commencement of school on Tuesday);
(b)the first half of all term school holidays (excluding Christmas school holidays) in even numbered years from after school on the last day of school term until 9.00am on the following Saturday;
(c)the second half of all term school holidays (excluding Christmas school holidays) in odd numbered years from 9.00am on the middle Saturday until the commencement of school on the first day of school term;
(d)the first, third and fifth weeks of the Christmas school holidays in even numbered years from 9.00am Saturday until 9.00am on the following Saturday, subject to paragraph 3 below;
(e)the second, fourth and sixth weeks of the Christmas school holidays in odd numbered years from 9.00am Saturday until 9.00am on the following Saturday;
(f)from 5.00pm on 24 December until 3.00pm on 25 December in even numbered years;
(g)from 3.00pm on 25 December until 5.00pm on 26 December in odd numbered years;
(h)from after school Friday until before school Monday on Mother’s Day weekend, if Mother’s Day does not otherwise fall on a weekend when the children are due to spend time with the Mother.
Irrespective of the provisions in paragraph 2 above, the children shall spend time with the father:
(a)each Father’s Day weekend from after school Friday to before school Monday;
(b)from 5.00pm on 24 December until 3.00pm on 25 December in odd numbered years; and
(c)from 3.00pm on 25 December until 5.00pm on 26 December in even numbered years.
Each child spend time and communicate with each parent and the other child on their birthday as shall be agreed between the mother and the father, and failing agreement:
(a)both of the children shall communicate with the parent with whom they are not otherwise spending time at 6.30pm Queensland time; and
(b)the parent with whom the children are spending time is to ensure they initiate, or cause the children to initiate, the call at that time.
Unless otherwise agreed, the children shall communicate with the mother each Wednesday and Sunday night when the children are not in the mother’s care and the father shall initiate, or cause the children to initiate, a call to the mother at 6.30pm Queensland time.
Unless otherwise agreed, the children shall communicate with the father each Wednesday and Sunday night when the children are not in the father’s care and the mother shall initiate, or cause the children to initiate, a call to the father at 6.30pm Queensland time.
Each parent shall give each of the children privacy to speak with the other parent during such communication by having them go into their bedroom for the duration of the call or by removing himself or herself from the immediate vicinity in which they are making the call, if it is not their bedroom.
Changeovers are to occur at the children’s school if a school day and if not a school day then the parent whose time is concluding shall deliver the children to the residence of the other parent at 5.00pm that day unless otherwise stated in this Order.
Injunctions
The mother be restrained and an injunction hereby issue restraining her from consuming alcohol which would cause her to be over and above the legal limit for driving whilst the children are in her care.
The mother and father be restrained and an injunction hereby issue restraining each of them from denigrating the other parent to the children or allowing other persons to do so in the presence of the children.
Specific Issues
The parties shall do all acts and things as are necessary and sign all documents as may be required for the children to hold a valid Australian Passport at all times and further to thereafter renew the children’s passports forthwith upon expiry of either passport and bear the costs of obtaining and renewing such passports equally.
The children’s passports be delivered up to and thereafter held by the father at all times other than when the children are travelling overseas with the mother.
The mother and father shall:-
(a)keep the other parent informed at all times of their residential address and telephone number; and
(b)keep the other parent informed of the names and addresses of any treating medical practitioners or other health practitioners that treat the children and authorise any such practitioner to release information concerning the children’s health to the other.
This Order is sufficient authority for any medical practitioner who provides care for the children or either of them and any school or educational facility at which the children attend to provide information to each parent about the children’s health and educational progress and their participation in related activities.
If either of the children is hospitalised or receives medical attention, the parent who has the care of the children at that time shall notify the other parent as soon as is practicable after the initial attendance and provide the details of the illness, injury, care provided as well as the name, identity and location (including address and contact details) of the place or facility at which the treatment is provided.
Each party including the Independent Children’s Lawyer, has the leave of the Court to supply a copy of this Order to the children’s school and to any medical practitioner providing care to the children or either of them and/or the parents of either of them.
Child Support
Enforcement of Child Support Departure Order dated 5 September 2017
The mother shall pay to the Registrar of Child Support, the sum of $28,400 within forty-five (45) days to extinguish the debt currently owed by her pursuant to the Order made 5 September 2017.
In the event that the mother does not make the payment, then:-
(a)an Enforcement Warrant shall issue, directing an Enforcement Officer, being a delegate of the Marshall of the Court to take seize and sell the following assets of the mother:-
(i)the mother’s motor vehicle 1;
(ii)the mother’s jewellery; and
(iii)the mother’s 800 shares.
(b)the father is to provide the Enforcement Officer with the registration number for the mother’s motor vehicle and any further identifying information relating to the jewellery or the shares within 7 days of the issue of the Enforcement Warrant;
(c)the mother shall do all acts and things as may be reasonably requested by the Enforcement Officer to effect the sale of the assets referred to; and
(d)in the case of the shares, the requirement for advertising the sale is dispensed with and the Enforcement Officer may appoint a stockbroker to sell the shares.
The Enforcement Officer is directed to account to the Registrar of the Child Support Agency in terms of the proceeds of seizure and sale and to provide a copy of the accounting to the Registrar of this Court and to each party.
Departure from Administrative Assessment
There be a departure from the administrative assessment for the period 1 January 2018 and 31 December 2019.
The terms of the departure be as follows:-
(a)the annual rate of child support payable by the mother to the father be set at:-
(i)the sum of $12,662 per annum, to be paid by equal calendar monthly instalments of $1,055.16;
(ii)the annual rate of child support payable by the mother to the father in accordance with sub-paragraph (a)(i) hereof will be indexed and reviewed quarterly and varied by increases equivalent to the CPI (All Groups Brisbane) on a quarterly basis as soon as is practicable after the issue of the statistical data by the Australian Bureau of Statistics.
(b)the annual rate of child support payable by the father to the mother be set at nil for the corresponding period.
(c)that the liability determined as payable pursuant to this departure Order is in substitution for any assessment made or calculated by the Child Support Registrar.
GENERAL
The Independent Children’s Lawyer be discharged.
All previous parenting orders be dismissed.
notation
It is noted that the injunction ordered in paragraph 9 herein was consented to by the mother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10362 of 2013
| Ms Gresham |
Applicant
And
| Mr Gresham |
Respondent
REASONS FOR JUDGMENT
Ms and Mr Gresham are the parents of two young girls, B aged nine and C aged six. Ms and Mr Gresham are unable to agree about the girls’ living arrangements. Currently the children live with their father and spend time with their mother from Wednesday to Monday each alternate week.
The father wants to reduce the time the children spend with the mother by one night so that the children spend Thursday to Monday each alternate week with their mother and the mother wants to increase the time the girls spend with her to alternate weeks with the changeover day being Mondays.
In addition to the parenting matter, the parents are in dispute about child support. The mother has a child support debt of $28,400 arising out of a child support departure Order made on 5 September 2017. The father seeks to enforce payment of the debt by sale of the mother’s car, shares and jewellery.
The father also seeks a departure order from the current child support administrative assessment. The current assessment requires the father to pay child support of $5,188 per annum. The father seeks a departure order requiring the mother to pay child support of $19,500 per annum and for a nil assessment for himself.
For the reasons which follow I propose to order that the children continue to spend time with the mother in each alternate week from Wednesday to Monday. The child support debt will be enforced and a child support departure order made requiring the mother to pay child support of $12,622 per annum.
issues
The issues in this trial are:
a)Does the mother’s mental health or personality vulnerabilities compromise her ability to parent the children?
b)Should the child support debt of $28,400 be enforced by sale of personal property or should the mother be able to pay it off by paying the father’s half of the children’s school fees?
c)Should the mother be required to contribute towards the children’s maintenance by reason of her earning capacity?
background
Before embarking upon a consideration of the evidence relevant to the issues, I note by way of background that the parents commenced living together in 2000 and married in 2011. They separated in late 2012, although remained living in the same house until March 2013. They divorced in 2014. They moved from C to F Town in 2006 and they both currently live in close proximity to each other in F Town. The children attend a local private school. It is accepted by the parties that the children are likely to continue at their current school until grade twelve. The parents agree that decisions relating to major long term parenting issues should be made jointly and an order to that effect will be made by consent.
After separation in March 2013, the children lived in a shared care arrangement spending at least five nights in each fortnight with the father and the balance with the mother. There remained considerable flexibility with the arrangement. The parenting relationship was largely co-operative but took a turn for the worse in or about June 2014 when the mother announced that she was moving to Asia. The mother was quite insistent that the children relocate with her. She also suggested to the father that he move to Asia. There were some unpleasant exchanges between the parents around this time but I do not accept that those exchanges are a reflection of their general parenting relationship. I reject any contention that family violence was a feature of the relationship. Neither parent contended that the children require any protection from future family violence.
While living in Asia, the mother spent time with the children on numerous occasions, mostly in Australia, but there were lengthy periods when the children’s only contact with their mother was via FaceTime or Skype.
When the mother returned to Australia in June 2016, proceedings were commenced wherein the mother sought to spend equal time with the children. Although there have been some interruptions, the children and mother have generally spent time together on a regular basis since in or about August 2016.
The current parenting arrangement enables the children to spend Wednesday to Monday in each alternate week with the mother and the balance of time with the father. This arrangement has been in place since December 2017.
The father is a professional. The mother has engaged in only limited income earning pursuits since June 2016 despite her history of high earning employment. She pays no child support but provides for the children while they are in her care. Her contribution to the children’s school fees has been sporadic and unreliable.
legal principles - Parenting
Part VII of the Family Law Act 1975 (Cth) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[1] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[2]
[1] See Family Law Act 1975 (Cth) s 65D.
[2] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]
[3]Baghti & Baghti [2015] FamCAFC 71.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child, for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]
Does the mother’s mental health or personality vulnerabilities compromise her ability to parent the children?
[4]Banks & Banks (2015) FLC 93-637.
There are four particular events upon which the father relies to call into question the mother’s mental health and/or personality. They are:
a)the circumstances surrounding her decision to move to Asia in August 2014 leaving the girls in Australia;
b)the circumstances surrounding her return to Australia in June 2016;
c)her attendance at F Town Hospital on 10 August 2016; and
d)her behaviour on 7 December 2017.
In addition, the father relies upon the mother’s failure to be candid and honest with the Court on a range of matters including her use of alcohol, to support his contention that the Court should adopt a cautious approach in determining the time the children spend with the mother.
Circumstances surrounding mother’s move to Asia
Prior to her decision to move to Asia, the mother had been working in Brisbane and left abruptly on 28 May 2014. The reason for her departure has never been divulged. The mother says she is bound by a confidentiality agreement with her previous employers that prevents her from disclosing the details but that was not always the case. The father was contacted by the manager of the company prior to May 2014 when contact could not be made with the mother. In that conversation the father was told that a serious incident involving the mother had occurred on a work trip and he needed to contact the mother urgently so that the issue could be resolved within the office.
The background to this event includes the mother losing her licence for drink driving in February 2014 and continuing to drive with the children on the weekends contrary to the driving licence restrictions permitting her to drive for work purposes only during the week. This information was not provided to the father until many months later.
Having undertaken an interview in early June 2014, the mother relocated to Asia in August 2014 providing only about two weeks’ notice to the father.
I am not persuaded that the mother had exhausted attempts to find employment in south east Queensland prior to her acceptance of the position in Asia. She left her Brisbane employers in May 2014 and was interviewed for the job in Asia in early June 2014. The mother showed little insight into the impact of her decision on the children.
That said, I am not critical of the mother for relocating per se. It is just that her secrecy leading up to her departure and her demands of the father in relation to the children also relocating did little to promote an ongoing harmonious parental relationship.
Circumstances surrounding the mother’s return to Australia in June 2016
The mother’s employment ended in undisclosed circumstances in April 2016 but she did not return to Australia until June 2016. I do not accept the mother’s evidence that it solely related to her wanting to return to Australia to be with her children, particularly given that the mother remained in Asia and went on holidays before returning to Australia. The mother informed the father, at the time, that she was physically and mentally unwell. She also resisted paying child support on the basis of her poor health.
The mother communicated in a rather bizarre fashion with the father in the months leading up to her return. Among other things, she referred to herself as being crazy and communicating with a ghost. She informed the father that she had some fairly serious physical ailments that required further investigation.
Upon the mother’s return to Australia the parties entered into negotiation about what time the children would spend with the mother. The mother denied any serious issues with her health despite the earlier information provided by her to the father and to the Child Support Agency.
The mother showed little insight into the impact of her bizarre communications with the father prior to her return on the parenting relationship. It was reasonable for the father to have some reservations about the mother spending time with the children as demanded by her at that time.
The mother’s attendance at hospital on 10 August 2016
On 11 August 2016 the father received information in a telephone call from a person unknown to him. This person told the father that the mother had harmed herself and had been taken to hospital for treatment. The father caused a letter to be sent to the mother seeking clarification. No response was received.
The mother failed to communicate with the children in accordance with her usual practice thereby adding to the father’s concern.
On 15 August 2016 the father received a Facebook message from a person unknown to him but claiming to be a former friend of the mother’s. The message informed the father that Queensland Mental Health had been trying to contact the mother but had been unable to do so. This person’s name had been provided by the mother as her next of kin. The person did not want to be involved with the mother. A contact for Queensland Mental Health was provided to the father. When the father contacted Queensland Mental Health he was advised that they had made contact with the mother but no other information was able to be provided to him.
The matter came before the Court on 25 August 2016. On the basis of representations made by the mother to the Court, namely, that there was no basis for any concern about her mental health, the father agreed to the mother spending time with the children each alternate weekend. The mother stated that it would be a ‘fruitless exercise’ to subpoena the records of F Town Hospital (“KTH”). She denied any self-harming and advised that she had attended hospital for a ‘ribs check’. She denied that she had been transported to hospital by ambulance. She stated that her attendance at the hospital had been voluntary and that she had transported herself to hospital.
The father was understandably alarmed upon later reviewing the file from the KTH and Queensland Ambulance Service (“QAS”) relating to the mother’s attendance at that hospital on 10 August 2016. The records reveal:
a)At 6.06pm on 10 August 2016 Ms L[5] made a 000 call stating that the mother had threatened suicide by overdose and had cut her wrists. The mother had sent photos showing superficial cuts to her wrists and stated that she had left $10,000 to arrange her funeral. The mother was not responding to calls. Ms L was outside the mother’s apartment block and could not gain access;
b)Ms L and the Ambulance officers gained access to the mother’s apartment when the building manager attended after about half an hour;
c)Upon entry to her apartment it was noted that the mother was on a sofa and stated she had taken 3 tablets of Zopiclone (sleeping tablet) 7.5 mg and drunk 1 glass of wine. There was broken glass on the table. The mother denied self-harm as she did not want to lose the custody battle about her children. The mother appeared slightly drowsy and the cuts to her wrists were superficial. The mother was transported to the KTH. She was chatty during transport. She did not want to disclose if she had tried committing suicide in the past;
d)The mother was assessed at the hospital under an Emergency Examination Order. The mother said that she had returned to Australia from Asia two weeks prior and that she is in a custody battle about her children. Her ex-partner was meant to come to Australia to support her but had decided to stay overseas. She had been feeling unwell with an URTI and wanted to get a good night’s sleep so had taken 2 Zopiclone 7.5mgs and 2 glasses of wine and had no recollection of messaging friends. She had no recollection of superficial abrasions to her wrists. She woke up with the QAS were at her door. She denied any suicidal ideation/intent and denied any previous suicide attempts. Apart from feeling drowsy the mother said she had no other symptoms. Mr M (a friend called by the mother) said that the mother had a lot of social stressors and had sent messages to her ex-partner as a method of attention seeking. Mr M said he was willing to stay with the mother overnight to make sure she was alright;
e)The mother advised that she had consulted a psychologist for two years after her marriage failed and was due to see her again the following day;
f)While the mother denied any intent to harm herself, the veracity of her claims are highly dubious. The cuts themselves have barely broken the skin. Mr M will stay with her overnight. Likely act entirely designed to elicit a reaction from overseas boyfriend. All efforts this evening were aimed at minimising events and offering a picture of happiness and nil distress. Poor historian and poor engagement. The mother’s reluctance to offer a genuine version of events most likely springs from embarrassment at her actions and her concerns that these acts could prejudice her ongoing custody dispute;
g)The mother denies any real knowledge of events and her reports are implausible to the point of being ridiculous – i.e. the cuts were from carrying boxes, and the text messages were sent without her conscious awareness. That said, the mother displayed no evidence of depression, has no history of major mental illness and her long-time friend (Mr M) strongly refutes that the mother is at any risk of harm to herself;
h)Numerous attempts in the days following to contact the mother were unsuccessful. Contact was finally made with the mother on 15 August 2016 when she was tearful but there was no indication that she was at risk of harm.
[5] A person acknowledged by the mother to have been a one-time friend.
The mother remained evasive about this incident during the trial. I have no confidence that the version she provided during the trial was accurate. Whatever the true situation, it is not the case that she attended the hospital under her own steam (as indicated to the Senior Registrar) to have her ribs checked. Whether or not her actions were an attempted suicide or attention seeking behaviour directed at her then boyfriend overseas remains unclear. I reject her evidence that she had only consumed one glass of wine given the blood alcohol reading at the hospital at 10.30pm was 0.062 and her inconsistent statements about her alcohol consumption. It is more likely than not that the mother was intoxicated; took more of her sleeping tablets than recommended; sent photos of her scratched wrists to her then boyfriend and intimated that she intended to take her own life by referring to having $10,000 for her funeral. According to the father this type of attention seeking behaviour was not out of character in his own experience of the mother.
On 1 December 2016 an Order was made requiring the mother’s time with the children to be supervised.
On 16 December 2016 the mother filed contravention proceedings against the father alleging 16 breaches of the parenting Order. Three counts were dismissed summarily, 9 were dismissed after hearing evidence (either upon findings that the contravention had not been made out or there was reasonable excuse) and 3 counts were found in the mother’s favour but no penalty imposed. Those counts related to a failure to facilitate Skype contact, C being recorded as C Church on an enrolment form without the mother’s consent and lastly that the father had taken the children to the school’s church without the mother’s consent. The Order was amended to permit the father to take the children to church.
The trial judge was not persuaded that the mother’s contravention application was not a ‘knee-jerk’ reaction to the imposition of supervision of the mother’s time with the children.
Given the trivial nature of the contraventions found to have been proven I consider it likely that the mother’s action in filing the Contravention Application when she did was indeed a ‘knee-jerk’ reaction to the imposition of supervision. It does her little credit.
In her oral evidence the mother continued to blame everyone else for the incident on 10 August 2016 and showed no insight into the impact of her own behaviour on others. It was perfectly understandable for the father to have had significant concern about the mother’s mental health upon reviewing the information from the hospital.
Mother’s behaviour on 7 December 2017
Upon release of a psychiatric assessment of the mother by Dr J in July 2017 the supervision requirement was removed by agreement between the parties. The children commenced to spend alternate weekends with the mother from after school Friday to before school Monday.
Dr J recommended that the mother seek treatment from a mental health practitioner in relation to a number of matters.
A family report was prepared in September 2017 and an Order was made on 11 October 2017 for the children to spend unsupervised time with their mother each alternate week from Thursday to Monday. An order was made for the mother to engage with a mental health practitioner nominated by the independent children’s lawyer. The Order also provided for the children’s time to expand by an extra day per fortnight in December 2017 provided the mother had engaged with her mental health practitioner.
On the evening of 7 December 2017 the children were at the mother’s home with two other young children. At about 8.00pm the father received a Skype phone call from B who stated that she was calling from under her bed because she was frightened. She said her mother was angry, yelling and swearing. The father telephoned the mother and describes the mother’s speech as being slurred. When the father identified himself during the call to the mother she did not recognise either his voice or his name. The mother terminated the call and failed to answer when the father called back. The mother then drove with all four children in her car to a friend’s home. The mother concedes that she lied to the father about how she and the children travelled to the friend’s home. She also concedes that she should not have driven in her state and that she yelled and swore in front of the children referring to the father in foul terms. The mother also concedes that she told B to lie to the father about what had occurred on the evening of the 7 December 2017. The mother concedes that she smashed her mobile phone and hit B in the face with her iPad when she was trying to remove it from her daughter. The mother maintains that she did not intend to harm B.
As the father was driving to the friend’s home to collect the children he observed the mother wandering along the road barefoot. The mother concedes that she had taken two beers with her when she left her friend’s home.
The father recorded his conversations with B, the mother and Ms N (the friend and mother of the other two children from whose home the father collected the children).
The mother’s conduct on this evening was appalling. It is likely that the mother was affected by some substance, whether or not it was alcohol is unclear. I do not accept her version of events, namely, that she was overwrought because of demands being made of her by her family to support her sister with breast cancer combined with her recently ceasing certain medication. Whatever the cause, the mother accepts that her conduct was inappropriate and upsetting for the children. She has since apologised to the children and reassured them her behaviour will not be repeated.
The mother’s obfuscation about this incident is yet another example of her complete lack of insight into the impact of her behaviour on the parenting relationship.
While I have some understanding of the father’s actions in recording his conversations on this evening up to the point of his collection of the children, I consider that his decision to continue recording the children for nearly half an hour reflects poorly upon him. It smacks of evidence gathering behaviour at the expense of attending to the needs of the children. His questioning of the children prolonged their upset when he should have been focussed on calming the children and putting them to bed. Having listened to the recordings I have no doubt that the children, particularly B, are acutely aware of the conflict between the parents. If the parties are to move forward from their history of conflict, the practice of recording should cease and the children should not be encouraged by either parent to reveal information about the other parent.
Evidence relating to the mother’s mental health
No evidence was produced by the mother from her allegedly long term treating psychologist, Ms O. I am not satisfied with the mother’s reasons for failing to produce such evidence, namely that Ms O has just had her first baby and would not co-operate with the mother. I am more inclined to the view that the evidence, had it been called, would not have assisted the mother.[6]
[6] See Jones v Dunkel (1959) 101 CLR 298.
Dr J assessed the mother in March 2017. He opined that the mother did not appear to suffer from a psychotic illness nor a major depressive illness. There appeared to be a history of an underlying anxiety disorder. In his view the mother has significant obsessive compulsive traits and some personality vulnerabilities in the ‘cluster B’ range evidenced by the circumstances leading to her attendance at the hospital on 10 August 2016. Dr J noted however that the incident appeared to have occurred in the context of overwhelming stresses as well as possible intoxication. Noting the mother’s admitted history of alcohol abuse (some ten years earlier) and intravenous drug use as a teenager (a result of which was the contraction of Hepatitis C) Dr J recommended the mother seek treatment with a suitably qualified mental health practitioner “to assist her in managing the inherent complexities of being a single parent of young children, as well as the need to maintain an ongoing co-parenting relationship with the father.” He was also of the view that such treatment could support the mother “around managing her own high expectations of self and others, and the impact that these expectations can have within the parenting role”. In his view her personality vulnerabilities would be exacerbated by excessive alcohol intake.
The mother denies that there is anything wrong with her mentally and has only begrudgingly complied with an order that she engage with Ms P, psychologist. The mother has consulted Ms P on four occasions. Ms P did not consider the mother to have any psychological illness, which is consistent with Dr J’s assessment. Ms P developed a safety plan with the mother which the mother can enact when she is experiencing stress, anticipatory anxiety or vulnerability. Ms P recommended that the mother ‘continue therapeutic assistance to assist and support her in managing issues involved with being a sole parent, to improve and more effectively manage the co-parenting relationship with the father, as well as to prevent/manage potential emotional relapse.’ At the conclusion of the trial the mother’s counsel submitted that an order should be made for the mother to attend upon a registered psychologist. The mother has shown a reluctance to do so in the past. If therapy is to have any prospect of success it should be undertaken voluntarily. I encourage the mother to abide by the recommendations of Dr J and Ms P but I see no point in ordering her to do so.
The family report writer, Dr K, prepared two reports in this matter, the first as a result of interviews with the family in September 2017 and the second as a result of interviews with the children on 21 March 2018. Dr K recommended that each parent make every effort to reduce the conflict and improve their communication and levels of trust. “Demonstrations by [Ms. Gresham] of providing financially for the girls’ needs consistently over time and being more transparent with her health issues would confirm responsible parenting and be helpful for all family members.” In her opinion the mother did not demonstrate insight into the impact of her behaviour on the children or the parenting relationship. I accept that opinion. It accords with my own assessment of the mother during her oral evidence. Dr K recommended in her September 2017 report that the parents undertake parenting courses but the mother still has not completed hers.
Conclusions about the mother’s mental health and personality vulnerabilities
On the evidence available I do not consider the mother suffers from any mental illness that requires ongoing treatment. However, the mother’s behaviour on each of the occasions discussed above lends weight to the opinion of Dr J that the mother has personality vulnerabilities in the cluster B range i.e. dramatic, overly emotional or unpredictable thinking or behaviour. These vulnerabilities impact detrimentally on her parenting capacity particularly in relation to her lack of insight into the effect of her behaviour on the children and on the parenting relationship. That lack of insight was apparent during her cross-examination in relation to her secrecy surrounding her departure from her previous employers; her minimisation and misleading of the father and the Court about the incident on 10 August 2016 and her behaviour on 7 December 2017 including lying to the father and having B lie to the father.
Despite specific recommendations being made by Dr K in her first report e.g. undertaking a parenting course, meeting her financial obligations, being more transparent with the father in relation to her functioning etc., the mother has not taken the opportunity to rebuild trust with the father. That is regrettable.
Despite the level of mistrust between the parties they each propose that an order for equal shared parental responsibility be made for major long term issues. Neither parent envisaged an inability to agree about a major long term issue (as opposed to day to day issues). The parties have already agreed that the children will complete their schooling at their current school and will continue to attend church at their school. Neither child has any significant health issue.
In those circumstances I am persuaded that equal shared parental responsibility is in the children’s best interests.
I reject the mother’s proposal for an equal time arrangement for the following reasons:-
a)the mother’s limited insight on the effect of her behaviour on the children and on the parenting relationship;
b)her failure to take the opportunity to rebuild the trust of the father by adopting the suggestions made by the family report writer;
c)when the children live predominantly with one parent it provides greater stability and a feeling of having a home base;
d)more co-operation in day to day matters is required in an equal time arrangement. I accept Dr K’s opinion in this regard;
e)any concern the father has about the mother’s parenting capacity will be reduced if the children live predominantly with him;
f)I do not consider that the parents have a sufficiently co-operative relationship to manage an equal time arrangement.
I nevertheless consider that it is in the children’s best interests to spend significant and substantial time with the mother for the following reasons:-
a)the children have a close and loving relationship with the mother which will be able to be maintained by spending regular time with her;
b)they have spent alternate Wednesdays to Mondays with the mother since December 2017 and that arrangement appears to be positive for the children;
c)the children, while young, have consistently expressed a wish to spend more time with the mother so I am not inclined to reduce the time they currently spend with her, despite the recommendation of the independent children’s lawyer;
d)I remain concerned about the mother’s erratic behaviour on occasions and consider her capacity to manage will be enhanced by spending less than equal time with the children.
I am satisfied that the children will be able to maintain a meaningful relationship with both parents by the order proposed and that it is in their best interests to do so. I also consider that the proposed order minimises the risk to the children of exposure to conflict and to the mother’s, at times, erratic or impulsive behaviour.
child support enforcement
On 5 September 2017 a child support departure order was made fixing the annual rate of child support payable by the mother to the father for the period 1 August 2016 to 31 December 2017 at $25,000 and fixing the annual rate of child support payable by the father to the mother for the same period at nil.
As a consequence of that order, there is an outstanding debt due by the mother in the sum of $28,400[7] which the father seeks to enforce by way of sale of certain identified property in the possession of the mother.
[7] Certificate from Child Support Agency certifying debt up to 2 March 2018 at page 163 of exhibit 5 is $29,019.21 but conceded by father that as at 6 April the debt has reduced due to the offsetting of the father’s liability under the current assessment.
The mother does not oppose enforcement but seeks an order that her debt be paid by way of her meeting the father’s half of the children’s school fees (in addition to her paying her own half) at D School until the debt is repaid in full.[8] The mother has not been reliable in the payment of any school fees to date.
[8] See exhibit 22.
legal principles - Child support enforcement
Where there is a ‘registrable maintenance liability’ registered under the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”) the amounts payable under the liability are debts due to the Commonwealth.[9]
[9] See Child Support (Registration and Collection) Act 1988 (Cth) s 30(1) (‘Registration Act’).
Relevantly for the purposes of this case, a registrable maintenance liability includes a liability to pay a periodic amount for the maintenance of a child arising from a court order.[10]
[10] See Registration Act s 17(b)(i); Order made 5 September 2017.
A payee (in this case the father) is required to notify the Child Support Registrar of the order within 14 days[11] and the Registrar is required to register the registrable maintenance liability within a further 28 days.[12]
[11] See Registration Act s 23.
[12] See Registration Act s 24(1).
A payee is not entitled to, and may not enforce amounts payable under the liability other than by instituting a proceeding under s 113A of the Registration Act.[13]
[13] See Registration Act s 30(3).
Pursuant to s 113A a payee is entitled to enforce the registrable maintenance liability despite it being a debt to the Commonwealth, if notice is given to the Child Support Registrar at least 14 days before instituting proceedings or, in exceptional circumstances, within such shorter period as the court allows.
Any sum recovered must be paid to the Registrar in the first instance.[14]
[14] See Registration Act s 111F(1).
The procedure for enforcement is set out in Chapter 20 of the Family Law Rules 2004 (Cth).
application of legal principles - Enforcement
The liability of the mother to pay child support arises as a result of the child support departure order made by Forrest J on 5 September 2017.
The liability is a registerable maintenance liability capable of registration under the Registration Act.
By letter dated 6 September 2017 the Child Support Registrar was notified of the child support departure order made 5 September 2017 and, as evidenced by the certificate of debt, the registrable maintenance liability has been registered.
As the liability is a debt due to the Commonwealth the father is only entitled to enforce the liability under s 113A of the Registration Act. That section requires notice to be given to the Child Support Registrar at least 14 days before instituting proceedings for enforcement. The father’s proceedings were instituted on 14 November 2017. Notice was not provided until 5 March 2018.
The Child Support Registrar notified the father’s solicitor on 6 April 2018 that there was no intention to take any role in the proceedings. The Registrar also advised that the only steps taken by the Registrar to enforce the liability has been to gather some information and offset the child support debt against the father’s periodic child support liability.
The question arises as to whether the failure to notify before instituting proceedings is fatal to the enforcement application. The resolution of that issue depends on whether the requirement of notice before instituting proceedings is a jurisdictional or procedural condition.[15] I was not assisted by any submissions on this issue.
[15]Babbit & Babbit (2011) 46 Fam LR 77 at [143].
Section 30 of the Registration Act relevantly provides:
(3)If a registrable maintenance liability is registered under this Act, the payee of the liability is not entitled to, and may not enforce payment of, amounts payable under the liability other than by instituting a proceeding under section 113A to recover a debt due in relation to the liability.
Section 113A relevantly provides:
(1)A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:
(a) at least 14 days before instituting the proceeding; or
(b) in exceptional circumstances--within such shorter period as the court allows.
Section 113A was inserted into the Registration Act by amendment in 2006.[16] The explanatory memorandum states:
This requirement is to ensure that the Registrar is aware of enforcement action that is being taken in relation to a child support debt, so that the Registrar can accordingly make decisions about his or her own enforcement action. The shorter notification period in paragraph 113A(1)(b) is to deal with situations such as where the payee becomes aware that the payer is about to deal with a major asset, such as property, and wants to take action urgently to recover child support debts.
[16] Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Act 2006.
It appears that the intention of the legislature was to ensure that conflicting enforcement proceedings were not undertaken and that requirement of service at a particular time was intended to be a procedural rather than jurisdictional condition. I am fortified in that view when I consider that the ordinary rules of statutory construction require a provision to be interpreted in a manner consistent with the purpose of the statute as a whole.[17] “[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.[18] One of the principal objects of the Registration Act is to ensure that children receive from their parents the financial support that the parents are liable to provide.[19]
[17]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
[18]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at [397] (Dixon J).
[19] See Registration Act s 3.
Accordingly, in circumstances where the Child Support Registrar has been served with the proceedings, takes no objection and elects to take no part in the proceedings, I propose to permit the application to proceed as if the notice to the Registrar had been given prior to the institution of the proceedings.
In addition, the mother does not oppose enforcement but proposes to pay her debt off by paying the father’s share of the children’s school fees. I am not inclined to accede to that proposal given her unreliability with payment of her own share of school fees.
However, I will give the mother a further opportunity to pay the debt outstanding to the Child Support Registrar but if it is not paid within 45 days an enforcement warrant will issue for the seizure and sale of her car, shares and jewellery. I am conscious that the seizure of the mother’s car may impact on her ability to engage in employment but note the mother’s evidence that most of her work is able to be undertaken remotely i.e. at home. I am also conscious that the seizure of her car may inhibit the mother’s ability to take children to events etc. but orders of this Court cannot be ignored. The mother has had the ability to earn at a much higher rate than she has since returning to Australia. She has chosen not to do so and that has come at a cost to her children, namely, that the parents have not been sharing equitably the cost of supporting the children. The cost has to a very large extent fallen on the father alone. The value of the three proposed items should be sufficient to meet the debt but if not the father may well bring a further enforcement application.
Child support departure
The current child support administrative assessment for the period 3 January 2018 to 30 November 2018 assesses the father’s liability to pay child support to the mother in the annual sum of $5,188.[20] The current assessment does not assess the mother as liable to pay any child support and her debt is being offset against the father’s child support assessment. For the purposes of the assessment the mother’s taxable income is set at $13,522.
[20] Assessment notice dated 6 February 2018 at page 128 of exhibit 5.
The father seeks a child support departure order fixing the annual rate of child support payable by the mother at $19,500 for the period 1 January 2018 to 31 December 2019 and fixing the annual rate of child support payable by the father for the same period at nil.[21]
[21] There are alternative orders sought by the father if his primary application is unsuccessful.
The mother opposes any order for departure from the current assessment although she conceded that her earning capacity was $50,000.
legal principles – child support departure
The parents of a child have the primary duty to maintain that child and that duty has priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves.[22]
[22] See Child Support Assessment Act 1989 (Cth) s 3 (‘Assessment Act’).
Under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), where there is a child support assessment in force, a child support departure application can be dealt with by a court if there are already other proceedings before the court and the court is satisfied that it would be in the interests of the parties to consider whether a child support departure order should be made for a child in the special circumstances of the case.[23]
[23] See Assessment Act s 116.
The application is required to be served upon the liable parent and the Child Support Registrar.[24]
[24] See Family Law Rules 2004 r 4.23(1)(e).
An application for a departure order must establish three things:
a)That in the special circumstances of the case there is a ground for departure;
b)That it is just and equitable to make a departure order; and
c)That a departure order would be otherwise proper.[25]
[25]See Assessment Act s 117; Gyselman & Gyselman (1992) FLC 92-279 (‘Gyselman’).
Circumstances will be ‘special’ if there are facts peculiar to this case that set it apart from other cases.[26]
[26]Gyselman (1992) FLC 92-279.
When assessing whether a person’s earning capacity is greater than their income, the court must be satisfied of a number of matters set out in subs 117 (7B) of the Assessment Act including that the person has reduced their hours of employment or changed their occupation or working pattern and that decision is not justified on the basis of the parent’s caring responsibilities or state of health and the person has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
In determining whether it would be just and equitable to make a child support departure order the Court must have regard to the matters set out in s 117(4) of the Assessment Act.[27]
[27] See also sub-ss 117(6), 117(7A) and 117(7B).
In determining whether it would be otherwise proper to make a particular child support departure order the Court must have regard to the matters set out in s 117(5) of the Assessment Act.
application of legal principles – child support departure
I am satisfied that it is in the interests of the parties for the child support departure application to be dealt with as part of the proceedings pending in this Court. There is a child support assessment in force as noted above. The Child Support Registrar has been served with the application.
The grounds for departure relied upon by the father in the special circumstances of the case are:-
a)that the costs of maintaining the children are significantly affected
i)because of high child care costs in relation to the children;[28]
ii)because the children are being educated in the manner that was expected by their parents;[29] and
b)application in relation to the children of the provision of the Assessment 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 children because of the income, earning capacity, property and financial resources of either parent.[30]
[28] See Assessment Act sub-ss 117(2)(b)(ib),117(3B).
[29] See Assessment Act sub-s 117(2)(b)(ii) .
[30] See Assessment Act sub-s 117(2)(c)(ia)- (ib).
I accept that the costs of maintaining the children are significantly affected because the children are being educated in the manner that was expected by the parties and that the application of the assessment would result in an unjust and inequitable determination of the level of financial support for the reasons that follow. I do not find it necessary to consider the remaining ground relied upon by the father.
Factors that cause me to come to the conclusion that there are special circumstances include the mother’s failure to provide frank and reliable information and the difficulty pursuing a just and equitable outcome through the child support system given the mother’s attitude and failure to provide information in a timely manner or at all.
The father is 42 years of age and is currently earning a gross annual income of $123,500. He continues to live in a home previously jointly owned by the parties valued by him at $550,000 subject to a mortgage of $435,930. The father has few other assets. He has superannuation worth an estimated $162,409. He has credit card debt of $8,000 and owes money to his parents for legal fees of $21,000.
The mother is 40 years of age and holds a Bachelor degree. Her career up to April 2016 saw her employed in senior positions within large firms on significant salaries e.g. in Asia her salary was $170,000. The mother lives in a home previously jointly owned by the parties valued by her at $600,000 subject to a mortgage of $508,133. She has a car valued at $20,000, shares worth $3,864 and jewellery worth $8,000. The mother has superannuation worth an estimated $172,849. The mother has credit card debt of $35,000 and an alleged debt to the father of her former boyfriend of $32,000. I am dubious about the latter debt. The mother produced no evidence to support it and contended that she had no way of contacting the person she allegedly owes the money to.
The mother has been less than candid about her financial circumstances in these proceedings. She failed to comply with her obligations as to disclosure of all relevant documents in a timely manner. Obtaining information from her during cross-examination was a tedious process. She was at times evasive. At other times she disclosed information for the first time e.g. that she had received a compensation payout upon her departure from her previous employers. The consequence of such conduct meant that the father was unable to verify the evidence ultimately relied upon by the mother. The mother also gave a most unsatisfactory account of why a third party’s bank account was used to receive a payment from her superannuation from her previous employers, the receipt of which was not disclosed by her in the earlier child support departure proceedings in September 2017.
On her own evidence the mother has been undertaking consultancy work at a charge out rate of $80 per hour. In the period 20 November 2017 to 16 February 2018 the mother’s income from that source was $12,665 gross ($50,660 annualised). The work can mostly be carried out from her home. The mother is also about to start a job on a salary of $55,000 per annum for 25 hours work each week. There was no evidence that the mother could not undertake both forms of employment contemporaneously.
Doing the best I can on the limited information provided by the mother I assess her current earning capacity from employment to be $105,660 gross per annum. There may be expenses to be deducted from that sum but in the absence of evidence I am not prepared to speculate. The mother has historically rented out a part of her home on Airbnb and Stayz accommodation sites and has the ability to increase her income thereby. In addition, the mother has historically earned considerably more than she has since returning to Australia in June 2016 and I am not satisfied on the evidence provided by her that she has made a genuine effort to find gainful employment since that time. It seems from her evidence that she has placed a greater emphasis on lifestyle choices than contributing to the children’s maintenance.
The mother has not demonstrated that it was not a major purpose of her decision (not to utilise her earning capacity) to affect the administrative assessment of child support in relation to the children.
Accordingly, I assess the mother’s earning capacity as at least $123,500.
In relation to the children’s expenses, doing the best I can (as neither party challenged the alleged expenditure of the other, save that the mother is not reliably contributing to school fees and the father alone pays for before and after school care), the combined expenses for the children are:
Expense
Weekly sum in father’s household
Weekly sum in mother’s household
Combined weekly expenses
Combined Annual sum
School fees
251.00
0.00[31]
251.00
13,052.00
Food
165.00
100.00
265.00
13,780.00
Household supplies
20.00
10.00
30.00
1,560.00
House repairs
10.00
0.00
10.00
520.00
Gas
6.00
3.00
9.00
468.00
Electricity
18.00
20.00
38.00
1,976.00
Telephone
6.00
0.00
6.00
312.00
Petrol
25.00
10.00
35.00
1,820.00
Car maintenance
10.00
8.00
18.00
936.00
Clothing and shoes
40.00
40.00
80.00
4,160.00
Activities
50.00
60.00
110.00
5,720.00
Before and after school care (after rebate)
90.00
0.00
90.00
4,680.00
Medical, dental, optical
20.00
5.00
25.00
1,300.00
Entertainment
50.00
40.00
90.00
4,680.00
Chemist
10.00
4.00
14.00
728.00
Repairs furnishings and appliances
5.00
4.00
9.00
468.00
Books and magazines
7.00
2.00
9.00
468.00
Gifts
20.00
20.00
40.00
2,080.00
Hairdressing, toiletries
10.00
10.00
20.00
1,040.00
Internet
10.00
0.00
10.00
520.00
Total
823.00
336.00
1,159.00
60,268.00
[31] Given the mother’s unreliability in paying school fees I have not included any sum in her column.
It is common ground that the children were enrolled in a private school with the consent of both parties and that the children should continue to attend that school. The children’s attendance at that school significantly affects the costs of maintaining the children.
The fixed expenses of the father as set out in his financial statement are $1,433 per week and discretionary expenses for himself are $488 per week. The fixed expenses of the mother as set out in her financial statement are $658 per week (not including income tax) and discretionary expenses for herself are $432 per week. It appears that both parties are currently living beyond their means.
Given the respective earning capacities of the parties, the children’s expenses should be shared equally. Accordingly I propose to set the mother’s child support liability payable to the father for the period 1 January 2018 to 31 December 2019 at $243.50 per week or $12,662 per annum. From this sum the father will be responsible for paying the school fees. The father’s child support liability payable to the mother will be set at nil for the same period.
I am satisfied that such an order would be just and equitable having regard to the following matters in particular:
a)The nature of the duty of a parent to maintain a child;
b)The proper needs of the children;
c)The income, property and financial circumstances of each parent;
d)The earning capacity of each parent;
e)The commitments of each parent that are necessary to enable the parent to support himself or herself;
f)The hardship that would be caused to the children and the parents by the making of or refusal to make the order, in particular, the children may have to leave the school if the mother does not pay an appropriate level of child support.
I am satisfied that the proposed order is otherwise proper having regard to the fact that it is the parents of the children who have the primary duty to maintain their children. Neither party has indicated that the proposed order will have any effect on any income tested pension, allowance or benefit.
conclusion
I have determined that the mother’s personality vulnerabilities do have an impact on her ability to provide care for the children on an equal time basis. The children will benefit from the stability of having a home base with the father. An equal time arrangement would require greater co-operation in day to day parenting. The mother’s demonstrated propensity to secrecy and obfuscation would be counterintuitive to an equal time arrangement.
Nevertheless, the children will benefit from spending significant and substantial time with the mother. The current arrangements appear to have provided a positive experience for the children and I consider a reduction in the time they spend with the mother would be contrary to their best interests. The continuation of the current arrangement aligns to a greater extent with the children’s wishes than reducing the time. It also provides stability by continuing an arrangement well known to the children.
I have determined that the child support debt of the mother should be enforced. Enforcement is not opposed by the mother although the means of enforcement will be different to that proposed by the mother. There will nevertheless be a further opportunity afforded to the mother before the enforcement warrant is activated.
Lastly, I have determined that there should be a child support departure order in the special circumstances of the case because of the high costs of educating the children in a manner agreed to by the parties and because the application of the current assessment would result in an unjust and inequitable outcome for the children given the mother’s earning capacity. The departure order will require the mother to pay child support of $12,662 per annum. The father’s child support assessment will be nil.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 May 2018.
Associate:
Date: 03.05.2018
Key Legal Topics
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Insolvency
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