H & H
[2007] FMCAfam 90
•26 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2007] FMCAfam 90 |
| FAMILY LAW – Parental responsibility – father lives overseas – limited involvement to date – use of electronic communication. CHILD SUPPORT – Departure from Administrative Assessment – father lives overseas – capacity to earn income. |
| Child Support (Assessment) Act1989, ss.4, 117 Family Law Act 1975, ss.4, 60CC, 61DA, 64B |
| Chapman and Palmer (1978) FLC 90-510 DJM and JLM [1998] FamCA 97 Goode and Goode [2006] FamCA 1346 Matthews and Kennedy [2007] FMCAfam 26 Newan and Rowe [2006] FamCA 73 Spinks and Spinks (2001) FAMCA 197 S & S (2005) FMCAfam 78 |
| Applicant: | H |
| Respondent: | H |
| File Number: | SYM 3141 of 2001 |
| Judgment of: | Altobelli FM |
| Hearing date: | 29-30 January 2007 |
| Date of Last Submission: | 30 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gersbach |
| Solicitors for the Applicant: | Etheringtons Solicitors |
| Counsel for the Respondent: | Mr Gould |
| Solicitors for the Respondent: | Makinson & D’Apice |
ORDERS
The Mother and Father to have equal shared parental responsibility for the Children in relation to the long-term care, welfare and development of the children including but not limited to issues about:
(a)The education of the Children – current and future; and
(b)The surname by which they are to be known; and
(c)The religion of the children; and
(d)Their overseas travel including obtaining of passports; and
(e)Any change to the Children’s living arrangements that may make it significantly more difficult for the Children to communicate with their Father.
Notwithstanding order 1 above, for as long as the Mother and Children continue to reside in Australia, and the Father continues to reside outside of Australia, the Father is not to unreasonably withhold his consent to the Mother’s request to educate the Children at a particular school, or to enable the Children to travel both domestically and internationally for education or leisure purposes.
The Mother to have sole responsibility for making decisions about the Children’s day to day care, welfare and development during the times that the Children live with her.
The Children live with the Mother.
The Mother and the Father are to do all things necessary to facilitate, and ensure, that the Children communicate with their Father either by telephone, letter, email or webcam or other form of electronic communication as often as the parents agree but not less that once per calendar month.
The Mother is to keep the Father informed as soon as is reasonably practicable of:
(a)Any medical problems or illnesses suffered by the Children other than minor ailments; and
(b)The Children’s progress at school, not less than once a term; and
(c)A telephone contact number and an email address for the Children; and
(d)Any other matter relevant to the welfare of the Children; and
(e)Any changes to the above.
The Father is to keep the Mother informed as soon as reasonably practicable of:
(a)His residential address; and
(b)His telephone number; and
(c)His email address; and
(d)And changes to the above from time to time; and
(e)Any plans he has to return to Australia for any purpose that includes spending time or communicating with the Children.
All other Applications filed by the Mother and the Father are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM3141 of 2001
| DONNA ANN H |
Applicant
And
| JOHN FRANCIS H |
Respondent
REASONS FOR JUDGMENT
Background
The issues raised in this matter are child support and various parenting issues including the allocation of parental responsibility, a change of surname, where the children should attend school, and how much time they should spend with their father.
There are two children aged nine and aged seven.
The mother’s Application filed 11 May 2006 seeks orders that, in effect, vary existing parenting orders but specifically ask that she be granted sole parental responsibility in respect of the children and, in any event, sole responsibility in relation to decisions about the children’s travel and their surnames. The mother also sought a departure from existing administrative assessments of child support for the children on the basis that the father’s liability be calculated on the basis of a specific income amount. The mother’s Application was supported by her affidavit filed 11 May 2006, and her Financial Statement filed 12 January 2007. The Father currently pays child support at the rate of just under $150.00 per week, in total.
The father’s Response was filed 11 December 2006. Apart from seeking orders that the mother’s application be dismissed, the father sought an order that the children spend time and communicate with him by means of telephone, email contact and webcam. The father’s Response was supported by an affidavit and Financial Statement both filed 11 December 2006, the paternal grandmother, also filed an affidavit on 11 December 2006.
Both the mother and the father gave evidence and were cross examined. The affidavit of the paternal grandmother was read and, as no notice was given for her to be available for cross-examination, she was not cross-examined.
By way of background, the father and the mother married on 18 October 1992 in Sydney, separated on 14 January 2000 and divorced 29 September 2001. On separation the children the children remained living with the mother. The father moved to the United States in October 2001 and first returned to Australia for the purposes of the hearing of this matter.
Mother’s Case
The mother’s case for sole parental responsibility in relation to the children was based, in substance, on her evidence that the father has had so little to do with the children since he left for the United States. Indeed, paragraph 39 of her affidavit asserts that “since October 2001 there has been no contact between the respondent and the children. The children have not received any telephone calls, letter, postcards or photos from the respondent.” In paragraphs 40-42, however, the mother does give evidence of a few attempts at communication when the respondent telephoned leaving a message on the answering service at her home, or forwarded Christmas presents through his parents. Both the maternal and paternal grandparents live in Australia.
The submission made by counsel for the mother at the conclusion of the case was that, in effect, the father had removed himself with no effort to make any arrangements in relation to ongoing parenting and had, thereby, abandoned the children and his parental responsibility. The submission is, in essence, that there is no meaningful involvement between these children and their father. The mother’s evidence is that the circumstances of the separation, and the father’s departure to the United States caused considerable emotional stress on her and the children. The mother’s evidence at paragraphs 49 and 50 of her affidavit is to the effect that since October 2001 the father never attempted to communicate with her, and never provided her with contact details other than a Post Office box number issued by his work. The mother also gives quite extensive evidence in her affidavit about the impact on M, in terms of his behaviour and his distress, arising out of the loss of his father.
As part of her application for sole parental responsibility, but also quite independently of this application should this application not be successful, the mother seeks orders in relation to a change in the children’s surname, as well as their schooling. In other words, irrespective of whether I made an order for sole parental responsibility, the mother still seeks an order to let her change the name of the children and to decide where the children go to school. Insofar as her application related to a change in name, her evidence is that it was M, her son, who continued to raise the subject of the change of surname and had, apparently, adopted the mother’s maiden name, and the name of her parents, in the course of his school work. Insofar as the mother’s application related to where the children would go to school, she gave evidence about what she felt was an agreement between the father and herself that the children would be educated in a Catholic private school.
In essence, the mother’s application for a departure order regarding child support was based on continuing to attribute to the father the income he had as at the time he left Australia. It was common ground between the mother and father that as at the time of separation, and the time he left Australia, the husband was employed in a business owned and operated by his parents, and was earning the equivalent of $87,000.00 per annum. Her case was that this figure represented his capacity to earn at that time, and that it should continue to be attributed to him for the purposes of child support. Her case is that the husband made a lifestyle change which resulted in a reduction in his income but that his capacity to earn income at the level of $87,000.00 was and continues to be the case.
The mother also seeks an order granting sole responsibility for obtaining all travel documents including passports for the children without requiring the consent of the father. Her evidence was that even though she was not in a position to afford to take the children overseas, particularly as they enter high school, there may be opportunities from time to time for them to do so, particularly with the benefit of financial support of her parents. She wants the freedom to make these decisions without having to contact the father.
Father’s Case
The father’s response to these issues, and to this evidence, was significantly different. In relation to parental responsibility, for example, his evidence was that when he first moved to the United States he tried to call the children at least once a week, on weekdays and on weekends, was always confronted by an answering machine and never had his messages to the children returned or his calls answered. The submission by the father’s counsel at the close of the case was that despite the father’s effort to maintain communication with his children, the obstacles were so significant, and so frequent, that eventually he gave up. The father’s evidence for example is that he sent Christmas presents to the children yearly, attempted to telephone the children on birthdays, and used his parents as a medium for communicating with the children and passing along presents, all to no avail. Indeed, it is part of the father’s case that the mother had failed to facilitate his ongoing relationship with the children, not just passively by obstructing his attempts to communicate, but actively by not initiating communication with him, particularly in circumstances when, he asserts in his evidence, she knew very well where he lived and how to contact him but did not do so.
The father expressed concern in his evidence about being “shut out” of decisions regarding where the children would go to school. He says there was no agreement about giving the children a private Catholic school education. His evidence is that, in any event, it all was dependent on affordability and at no time during the marriage was such a private Catholic school education affordable to them.
The father’s evidence is that he does not agree to the mother being able to make unilateral decisions about the children’s surname, schooling, and decisions about travel, even though his evidence indicated that should such consultation take place, he probably would have agreed so far as schooling and travel is concerned, but not as regards the surname.
In relation to the mother’s child support application, the father gave evidence about his financial circumstances in the US. His evidence is that he has not earned $87,000.00 per annum since 2001 when he last worked for his parent’s company in Sydney. His evidence was that he had a falling out with his parents but that notwithstanding this, he continued to earn $87,000.00 per annum right up until he left for the United States. His evidence was that this did not reflect the market value of his services, and it was a package that reflected his relationship with the business proprietors, his parents. The father’s evidence was that in Australia he was qualified to work as a funeral director and embalmer, but that his qualifications were not recognised in Kentucky, where he was living and that the cost of gaining such qualifications, let alone the time to undertake the training, was simply unreasonable and unrealistic under the circumstances. In essence, the father’s case was that he was paying child support as assessed by the Australian Government Child Support Agency, having regard to the Australian dollar equivalent of his United States income, and that his income properly reflected his earning capacity.
Assessment of the Evidence
During the mother’s cross-examination one of the most significant issues to emerge was her attitude towards future communication between the children and their father, by email, telephone and webcam. At first, I thought the mother’s evidence was quite ambivalent and indifferent because many of her responses about the potential benefits to the children of such ongoing communication was “perhaps”. Having observed all of her evidence in its entirety, I’m not prepared to find that her attitude about future communication between the children and the father is an ambivalent one. I think she was genuinely concerned about the possible impact on the children of re-establishing communication with their father after such a long time. Her answers to questions in cross-examination indicated that if the resumption of communication occurred with regularity, then she would not get in the way. That does not necessarily mean that she would actively facilitate it, however. In all of the mother’s evidence I formed the impression that she was a deeply hurt woman who felt that her husband had abandoned her, and her children’s father had abandoned them. Those strong feelings are understandable, but they are also relevant in the context of her application for sole parental responsibility.
It was squarely put to the mother in cross examination that according to the father’s evidence, he tried to communicate with the children but she had thwarted it. The mother denied this saying, in effect, that she had done everything in her power to further the relationship between the children and the father. Notwithstanding her assertions, her cross examination leads me to find that she has known where the father has lived since April 2003 but that at no time did she personally attempt, or did she encourage the children, to communicate with their father. In this regard I find her actions in failing to facilitate the ongoing relationship between the father and the children disappointing. She could have tried harder and, quite frankly, the father could have tried harder as well. I suspect that for various reasons both parents were hurt as the result of the breakdown of the relationship and this caused them both to be distracted away from acting in the best interests of their own children. The father was confronted by the additional dimension of distance. As will be evident below, I am not inclined to grant the mother’s application for sole parental responsibility in a case such as this where, I find, she has been an active contributor and participant in the breakdown of the relationship between the children and their father and in the failure to facilitate its resumption.
The mother was also cross examined in relation to the child support departure application. She could not be swayed in terms of her views about the husband’s earning capacity. In terms of her own earning capacity her evidence was that she has not worked in part time or fulltime employment for the last three years, but she had been attempting to find work somewhere, and that notwithstanding her qualifications and experience as a legal secretary, she has not been able to find work as such. Her evidence is that she is now starting to look for work beyond legal secretarial work including doing administrative secretarial work at school. Her capacity to work is not the main issue in this case, but if it were, I would find that she did have the capacity to gain a part-time job during school hours particularly having regard to her experience as a legal secretary. The largely unchallenged financial evidence of the mother is contained in her Financial Statement sworn 12 January 2007. In terms of average weekly expenses, the amount attributed to the children is $117.00 per week. It is clear from the mother’s affidavit sworn 11 May 2006 that there are other expenses relating to the children that are paid by her parents (eg paragraph 70). Nonetheless, the mother’s own evidence is that the weekly expenses incurred by her relating to the children is $117.00, and the amount she receives from the father each week for the children is $149.64.
The father was cross examined. Like the mother, it is clear that he obtains ongoing financial support from his parents. For example, like the mother, his legal fees are being paid by his parents. He was extensively cross-examined as to the truth of his assertions about attempts at ongoing communication with the children, sending presents to them etc. Whilst I accept that the father’s evidence was presented in a flat, almost disengaged manner, I also find that this did not detract from the truth of what he was saying. I accept his evidence about continuing to contact his children until the point that he became frustrated by what he perceived as the mother’s obstruction and basically gave up. He probably could have tried harder. I have no doubt that the manner in which the father dealt with his departure to the US and the failure to put in place arrangements in Australia before leaving for the US for his ongoing communication with the children demonstrated a lack of insight on his part. I am satisfied however that an order for communication with the children by way of phone, email and webcam would be an order that he would respond to responsibly, and with commitment.
In relation to child support, the cross-examination of the father indicated that his status with his parent’s business changed from being Managing Director to a lesser position in 1999, but he retained the higher salary till he left to the United States in October 2001. It is clear that there were inconsistencies in the evidence he gave before Local Court Magistrate Mitchell, in earlier child support proceedings in the Local Court Family Matters, but I am satisfied that the inconsistencies, the main ones of which related to his ability to work as a funeral director in Kentucky, arose from obtaining further information about his qualifications once he got to the United States.
The father agreed that communication with the mother was problematic but seemed hopeful that it could work in the future. Indeed he said words to the effect “maybe its time we both got sensible in relation to the children.” The father was prepared to concede in cross examination that he was “probably not as sensible as I could have been in the past.” I observe that this demonstrates an insight into his own behaviour that seemed to be missing from the mother’s evidence. He clearly feels frustrated about not having played a role in decision making over the last five years, but realistically agreed that if he had been consulted in relation to issues such as schooling, passports and travel he probably would not have objected.
In relation to child support, in essence the father’s evidence was that he was going to change employment anyway, as the result of the breakdown of the working relationship with his parents. The father’s evidence is that his income bore no proportion to his real worth and therefore his real earning capacity and that it was, in effect, an artificial situation arising out of the fact that he was working in the family business. According to the father, the fact that he went to the United States and remarried had nothing to do with the change in employment – the latter was always going to occur.
There are aspects of this evidence that cause me concern. The father readily agreed in cross examination he was so keen to leave Australia at the time that he wanted to create the impression that there be no hold up in the continued payment of child support at the level it was at that time. Indeed, I think I can safely infer from the evidence that the father was aware at the time of his departure of the mother’s concern that the very situation arising in this litigation would in fact arise, ie that once the father moved to the United States, he would seek a reduction in the amount of child support payable. However, his evidence is that he had expressed his concerns about the possibility of a reduction in income to his wife before he left
One thing that became clear from the father’s cross examination is that even though his current assessment of child support is based on a child support income of $40,587.00, since at least May 2006, his income has been $48,400.00. The father’s evidence was that he had not notified the Child Support Agency about the change and that he was not aware of the necessity to do so.
Clearly, one of the major factual issues that I need to determine in this case is the relationship between the father’s earning capacity and the issue of his ability to engage in work as a funeral director in the United States. I accept the father’s evidence contained at paragraph 18 of his affidavit that he was not qualified to work as a funeral director or embalmer in Kentucky. I also accept that it is too expensive, and therefore unreasonable in fact for him to acquire those qualifications. His evidence in this regard was not seriously challenged by counsel for the mother but the mother’s case was not dependent on this evidence, in any event.
Legal Issues: Parental Responsibility
From the legal perspective, the case raises a number of distinct issues. The first issue relates to parental responsibility. The mother’s case is that the presumption of equal shared parental responsibility contained in s.61DA of the Family Law Act is rebutted pursuant to s.61DA(4) because applying the presumption is not in the best interests of the children. If the presumption is rebutted, of course, then an order for sole parental responsibility would be made and, arguably, this would give the mother the authority to make decisions in relation to some of the other contentious issues in this case including the surname, passport and travel, and the school issues. The submissions from Mr Gersbach on this point on behalf of the mother were basically that the father had abandoned the children and his parental responsibility by removing himself to the US with no effort to make any arrangements in relation to ongoing parenting. His submission is that there is no meaningful involvement between the children and their father, and that it was open for me to find that the children were suffering from psychological harm as a result of being neglected by their father. Mr Gersbach submitted that in view of the lack of communication between the parents, and in view of the logistical obstacles as regards communicating between Kentucky and Sydney, it was simply not likely that there would be the level of communication to sustain meaningful involvement in future.
It was submitted on behalf of the mother that if the presumption was rebutted then the remaining issues would be determined by reference to s.60CC of the Act and would, ultimately, be resolved in favour of the mother. I understood Mr Gersbach’s submissions to be that even if an order for sole parental responsibility was not made that the Court should authorise the mother to be solely responsible for decisions in relation to travel, passports, schooling and change of surnames.
In relation to the parental responsibility issue, Mr Gould submitted that for all practical purposes, the mother had conceded that irrespective of the difficulties that had been experienced in the past as between the children and the father, that the order sought by the father for ongoing communication into the future by way of email, webcam and telephone was in their best interests. I agree that the mother did make these concessions in her evidence. Accordingly, Mr Gould submitted, even the mother conceded that there was a meaningful relationship into the future which thus made it very difficult to rebut the presumption. Mr Gould readily conceded the clear communication difficulties that exist between the parties, but submitted, quite appropriately I believe, that the cause for the past difficulties cannot be attributed to just the father. He urged that based on pre-1 July 2006 authorities under the Family Law Act about parental responsibility, I should be very slow indeed to shut out one parent from decision making. This, of course, extended to the issues of schooling, surname, and passports and travel.
Parental Responsibility under Part VIII of the Family Law Act
Parental responsibility is defined under s.61B of the Act to mean “in relation to a child, … all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Section 61C then provides that subject to an order of a court, each of the parents has parental responsibility for the child, despite any changes in the nature of the relationship of the child’s parents, including, e.g, separation, marriage, or remarriage. Section 61C confers parental responsibility on “each of the parents.” This parental responsibility is joint and several i.e it may be exercised by parents in conjunction with each other, or by each parent individually.
In this case there is a parenting order made on 7 August 2000. Order 11 is the relevant one:
The Children shall reside with the wife and the wife shall have day-to-day care and control of the children.
There are also orders that relate to contact between the children and their father.
The relationship between the joint parental responsibility created by s.61C and the parenting order dated 7 August 2000 is understood by reference to s.61 D:
S 61D(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Having regard to s.61D, therefore, in this case the parental responsibility conferred on the father was only diminished to the extent that the order expressly provided for the children to live with the mother, and for her to make decisions on day-to-day matters.
Section 61DA creates a presumption of equal shared parental responsibility when making a parenting order on or after 1 July 2006:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Moreover, the Court’s general power to make parenting orders in s 65D(1) is expressly subject to s 61DA, thus emphasising the centrality of the presumption created there.
The legislation goes even further, however, because s65DAC described the effect of a parenting order that provides for shared parental responsibility.
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The requirement to consult in this section does not apply to issues that are not major long term issues, as s.65DAE states:
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order.
The definition of major long-term issues is found in s.4(1) of the Act:
"major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Clearly then, in this case, the issues raised by the mother about the children’s schooling, and their surnames, are major long-term issues. However the list in the definition is not meant to be exclusive as the words “includes (but is not limited to)” clearly indicates. Hence the issue of travel and passports could also be included as a major long term issue, and I think in this case it is quite appropriate to do so.
In order for the mother to make decisions about these issues without consulting with the father pursuant to s.65DAE, she needs either to convince the court that the presumption in s.61DA is negated under s.61DA(2) or rebutted under s.61DA(4), or to convince the court that it should make a parenting order that applies the presumption but modifies the otherwise equal allocation of parental responsibility otherwise created by s.61DA. There is no doubt that the court has the power to do so under s.64B.
The mother’s case is that the presumption in s.61DA is rebutted under sub-section (4) because it is not “in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Under what circumstances should the presumption be rebutted? In this regard I adopt the comments I made about s.61DA(4) at paragraph 41 in Matthews and Kennedy [2007] FMCAfam 26:
41.Given the “legislative intent evinced in favour of substantial involvement of both parents in their children’s lives” it is hardly likely that s 61DA(4) will become an easy, readily available escape clause from that legislative intent. Rebutting the presumption needs strong, clear evidence. Given the overall context (s.60B) in which the framework (s 60CC) appears, it is hardly likely that a statutory scheme that so strongly encourages shared parenting is to be easily subverted. Indeed, the Full Court has demonstrated its willingness to consider context (i.e. the objects in s 60B), in cross-checking whether its interpretation of framework and process was correct. For example, at paragraph 80 the Full Court states:
We have earlier touched upon this matter. Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.[1]
[1] Goode and Goode [2006] FamCA 1346 at 80
The challenge confronting the mother’s case was to convince me that the presumption should be rebutted even though the mother concedes that a future relationship and future communication between the father and children is indeed possible. This also must mean that the meaningful relationship between the father and the children that clearly existed before separation is likely to be resumed henceforth, even if such meaningful relationship does not exist at the present moment. In any event I find that the mother was an active participant in and contributor towards the breakdown of the meaningful relationship between father and children since he moved to the United States of America. That too is a factor I take into account in deciding that s.61DA(4) is not established.
On behalf of the mother, Mr Gersbach also submitted that it was open to me to find that the children were suffering from psychological harm as a result of being neglected by their father and thus the presumption is negated under s.61DA(2). There is no evidence before me of this psychological harm, and I find that s.61DA(2) does not apply to the facts of this case.
Mr Gersbach’s submission about the absence of a meaningful relationship between father and children does invite some observations about what this means, notwithstanding my comments above. I adopt my discussion of this concept in Matthews and Kennedy [2007] FMCAfam 26 at paragraphs 44 to 48. In particular I adopt the comments of Professor Parkinson where he reminds us that courts cannot by order create meaningful relationships between parents and children, they can only create or maintain the circumstances that make meaningful relationships possible. My sense in the present case is that if I granted the mother’s application, I would seriously impede if not destroy any prospects of the meaningful relationship being resumed and realised as between the father and the children.
As the presumption is not rebutted, there is an obligation to consult in relation to long term issues. As I indicated above, travel and passports are within the definition of long term issues in s.4(1) and are therefore clearly within the statutory requirement for consultation. The mother’s application fails in this regard, but I say to the father that having regard to his current living arrangements it is perhaps not unreasonable for him to accede to the mother’s requests in relation to schooling, travel and passports. One can but hope that this level of cooperation between parents will become the benchmark for future cooperation and communication, and create a constructive role model for the children.
In relation to the surname issue, the only evidence before me was as summarised by me in paragraph 9 of these reasons. The evidence goes nowhere in this regard. The evidence in favour of authorising a change of name simply does not address the factors referred to by the Full Court in Chapman and Palmer (1978) FLC 90-510 at 71, 676. Indeed my findings above in relation to equal shared parental responsibility positively indicate against authorising a change of name.
Legal issues: Child Support Departure Application
The next legal issue relates to child support and whether departure orders should be made in accordance with s.117(2)(b)(ii) (because the child is being cared for, educated or trained in the manner that was expected by his or her parents) and s.117(2)(b)(i) (because of the earning capacity of either parent). Mr Gersbach characterised this case as a lifestyle change case and that the father should be treated as being able to continue to earn $87,000.00 for child support purposes, even if he does not do so now. Mr Gersbach referred me to a decision of Chisholm J in Spinks and Spinks (2000) FLC and Riethmuller FM in
S & S[2005] FMCAfam 78. Mr Gersbach submitted that even if I did not find the father’s earning capacity to be $87,000.00, it should be more than it is now in accordance with the assessment.
Mr Gould’s submissions on the child support issue on behalf of the father was quite robust. His submission was that the threshold issues is s.117 of the Child Support (Assessment) Act had not been crossed. In other words, there were no “special circumstances” and that, in any event, it would not be just and equitable and otherwise proper to make an order. In any event, his submission was that to attribute a notional income of $87,000.00 to the father on the facts of this case would be an exercise that was “artificial, verging on the perverse.”
Notwithstanding the actual words used in her application, I took the substance of the mother’s application to be that she sought a departure from administrative assessment so that the father could be assessed on the basis that his income is $87,000.00 per annum, which was the father’s income up until he left Australia, and that he should be attributed as continuing to have that earning capacity, even though the evidence clearly indicates that he only earns the equivalent of $48,000.00 per annum in the United States of America. In relation to school fees, the mother’s case is that it was their joint intention to send the children to private schools.
The relevant provision is, of course, s.117 of the Child Support (Assessment) Act which states:
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 care for any other child or another person that the parent has a duty to maintain;
(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 care for 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; or
(iii) because an amount (the additional amount ) of a liable parent's child support income amount was earned, derived or received by the liable parent for the benefit of a resident child or resident children of the liable parent; or
(iv) because an amount (the additional amount ) of an entitled carer's child support income amount was earned, derived or received by the entitled carer for the benefit of a resident child or resident children of the entitled carer.
High costs involved in enabling parent to have contact with child
(3) 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 sub-subparagraph (2)(b)(i)(A) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the parent's child support income amount for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
High child care costs
(3A) The ground for departure mentioned in sub-subparagraph (2)(b)(i)(C) is taken not to exist unless:
(a) the costs are incurred by the carer entitled to child support; and
(b) the child is younger than 12 at the start of the child support period; and
(c) the liable parent is not an eligible carer of any eligible child of whom both the liable parent and the entitled carer are the parents.
(3B) Child care costs can only be high for the purposes of sub-subparagraph (2)(b)(i)(C) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the carer's child support income amount for the period by 365; and
(b) multiplying the quotient by the number of days in the 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.
(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.
Matters to consider for purposes of paragraph (4)(b)
(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.
Matters to consider for purposes of paragraph (4)(c)
(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.
Matters to consider for purposes of paragraph (4)(d)
(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.
Determinations in respect of paragraph (4)(da)
(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.
Matters to consider for purposes of paragraph (4)(f)
(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.
I was referred in submissions to the decision of Riethmuller FM in
S & S[2005] FMCAfam 78, a very useful decision in that it refers to a number of the leading cases dealing with whether a payer ought to be assessed by reference to his or her earning capacity rather than their actual income. Even though this case deals with a slightly different factual matrix (eg. child support agreement as opposed to child support assessment; payer sought departure whereas here the payee seeks departure) the principles are essentially the same. Paragraphs 61-63 of the decision of Riethmuller FM sets out the relevant considerations:
61. The considerations relevant when determining whether or not the agreed amount ought to be altered are those set out in the departure process provisions available under section 117 of the Act, using the approach set out in Gyselman & Gyselman (1992) FLC 92-279. In Gyselman the Full Court of the Family Court said (at 79,078):
62. As we have already indicated, the exercise under s 117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in sub-section (2) has been made out. The legislation then requires the Court to consider whether any proposed order is ‘just and equitable’ and ‘otherwise proper’.
Earlier, at page 79,065 the Court said:
Whilst it is not possible to define with precision the meaning of that term [‘special circumstance’], as a generality it is intended to emphasise 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 (1990) FLC 92-131 (p 77,897), Kay J ... said that ``special circumstances'' were ``facts peculiar to the particular case which set it apart from other cases''.
It is clear that each of the three steps must be addressed by the court, namely:
whether one or more of the grounds of departure in section 117 is established; and if so:
whether it is ‘just and equitable’ within the meaning of section 117(4) to make a particular order; and
whether it is ‘otherwise proper’ within the meaning of section 117(5) to make a particular order.
63. Each of the grounds of departure provided for in section 117 commences with the words: ‘that, in the special circumstances of the case’. As such a ‘special circumstance’ must be established.
The first question, even in the present case, is whether special circumstances have been established? The father is paying in accordance with an assessment that has regard to his US income (though it has not caught up with what seems from the evidence to be a recent pay-rise for the father ie from $40,587 to $48,400 per annum). The mother’s evidence at paragraphs 88-96 of her affidavit sets out at length her unsuccessful attempts since an assessment expiring 8 August 2001, to have the father assessed at a notional income of $87,000.00 per annum. Both her prior proceedings for departure in the Local Court Family Matters, and her attempts to seek a departure administratively including objections, failed. Moreover the mother’s own evidence is that the father is already paying child support ($149.64 per week) in an amount greater than the weekly expenses incurred by her in relation to the children ($117.00 per week). The mother’s financial circumstances are clearly superior to that of the father’s in all respects except weekly income. One would have thought that the administrative assessment of child support was doing exactly what it was meant to do in a case such as this ie meeting the principal and particular objects as set out in s.4 of the Child Support (Assessment) Act. In this case there are no special circumstances that warrant even considering a departure application and the mother’s case fails at this threshold.
Just in case I am wrong, however, I will briefly consider whether the mother’s claim would succeed in any event. I acknowledge that even if there are, in my opinion, no special circumstances there are, certainly from the mother’s perspective, peculiar facts that have caused her quite some distress. The fact is that the father was earning $87,000.00 right up until he left Australia towards the end of October 2001. Mr Gersbach for the mother submits that under s.117(2)(c)(i) the “earning capacity” of the father should be the basis for calculating his liability for child support, not his actual income.
This issue was discussed by Riethmuller FM in S and S at paragraph 69 where he states:
In DJM v JLM (1998) FLC ¶92-816 the Full Court of the Family Court discussed issues relevant to determining income and earning capacity in great detail. Whilst it is ultimately a question of fact in each case, it is appropriate to identify relevant considerations in determining this question of fact. In this regard, relevant considerations will generally fall within the following categories:
a)the ability to generate income;
b)the opportunity to generate income; and
c)whether the parent's pursuits are appropriate in the circumstances.
In terms of the father’s ability to generate income, the mother’s case in this regard is that if the father were still employed in the same position today in his parents’ family business, he could still be earning at least $87,000 per annum. But it does not go beyond that. There is no evidence that the father has the ability to earn that income in the USA even if he did undertake the extensive and expensive retraining that he gave evidence about. Indeed I accept the father’s evidence that the income he earned at that time was an artificial construct arising out of his relationship with the business proprietors – it could be replicated nowhere else. The father’s ability to generate and income was not like the husband in S & S (2005) FMCAfam 78 who was a highly qualified and paid actuary; or the husband in Newman and Rowe [2006] FamCA 73 who was a medical practitioner; or the husband in DJM and JLM [1998] FamCA 97 who was a management consultant. Whereas each of those gentlemen clearly had high incomes reflecting their ability to generate that income, the father in this case had an income that, due to artificial circumstances, exceeded his ability to generate that income.
In terms of the father’s opportunity to generate an income of $87,000.00 there is no evidence that this is possible in the present circumstances of the father, indeed there was not and indeed could not really be any serious challenge to the father’s evidence about his current earnings.
The third issue is whether the father’s pursuits are appropriate in the circumstances. Riethmuller FM discusses this at paragraphs 73 and 74 of S & S (2005) FMCAfam 78:
73. I am mindful of the comments of the Full Court in DJM v JML (1998) FLC ¶92-816, particularly that:
17.40 ... Child support and child maintenance orders are governed by legislation which emphasises and prioritises the obligation of parents to support their children and seeks to ensure that the level of financial support is to be measured according to the parent's ``capacity to provide financial support'' .
17.41 Property adjustment orders have far less focus and are arrived at on the basis of what is ``appropriate'' after weighing up many competing factors. Spousal maintenance is governed by a test of what is proper having regard to the reasonable ability of the liable spouse to meet the needs of the other.
17.42 In our view there can be different answers to the same question about earning capacity depending on which head of power is sought to be exercised.
17.43 A judge might reasonably say that a parent should be working longer hours or in more lucrative employment to meet child support obligations. A spouse is only required to support the other spouse to the extent that he or she is reasonably able to do so. This requirement does not impute the same degree of compulsion about it that the child support and child maintenance tests express. Thus a parent may be required or expected to work long hours or at more than one job if the parent has the capacity and opportunity to do so, and if the children need greater support than they would receive if the parent was only to work shorter hours. At the same time it might not be reasonable to expect an estranged spouse to avail himself or herself of such opportunities so as to provide maintenance for the other spouse. In the latter case it is a question of what is reasonable in the circumstances.
74. Of course, the balance between direct care for children, and earning income to support them financially is always difficult. This balance must inevitably be struck in almost every family as there are few households in Australia where there is no financial imperative for at least one, and in more recent times both parents to engage in employment. In considering this issue the path chosen by each family before separation is significant, as are the needs of the children after separation, and the capacity of the parents to meet those needs and engage in employment.
In this case, however, the evidence is that the needs of the children are being met by the parents with the father’s child support representing an adequate and appropriate contribution to those needs.
Clearly the ground has not been established. I also find that no ground has been established as regards schooling. The arrangement asserted by the mother was always predicated on affordability, and it is likely that it was not really affordable at any time during the marriage at least without the assistance of grandparents.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 26 April 2007
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