H & S
[2006] FMCAfam 157
•7 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & S | [2006] FMCAfam 157 |
| FAMILY LAW – Shared care arrangement – length and nature of past shared care – communication and co-operation – educational needs of children – financial contributions – children’s wishes. CHILD SUPPORT – Child support in addition to that under the formula. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) Child Support (Assessment) Act 1989 (Cth), ss.124, 125 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 |
| Applicant: | RH |
| Respondent: | NS |
| File Number: | CAM 1715 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 7 June 2005 |
| Delivered at: | Canberra |
| Delivered on: | 7 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Nash |
| Solicitors for the Applicant: | KJB Law |
| Counsel for the Respondent: | Ms A Rees |
| Solicitors for the Respondent: | Anne Marie Proctor & Associates |
ORDERS
The children RBH born September 1994 and HOH born February 1997 reside with each parent on a week about basis to start at the commencement of school each Friday unless otherwise agreed between the parties.
Both parents be jointly responsible for the long term decision making for the care, welfare and development of the children.
Each parent be solely responsible for the day to day decision making for the care, welfare and development of the children when the children are in their respective care.
The children spend at least two consecutive weeks with each parent each year during school holiday periods as agreed between the parties.
The parent with whom the children are not living may contact the children by telephone at any reasonable time.
The father purchase a suitable exercise book and the parents make use of this book for facilitating communication between them. The parents are to ensure that the children have the book at changeover.
Neither parent change the children’s permanent residential address without prior written consent from the other parent or order of the Court.
In the event of serious accident, injury or illness suffered by either child whilst in the care of either parent the other parent be advised as soon as practicable.
Both parents keep the other informed of their current telephone number and residential address.
Both parents provide the other parent with copies of all reports, notes or messages relating to the children received from the school whilst the children are in their care.
Each parent be restrained from discussing these proceedings or allowing anyone else to discuss these proceedings in the presence of the children.
Each parent be restrained from denigrating the other parent or allowing any other person to denigrate the other parent in the presence of the children.
Each parent be restrained from enrolling the children in any extra-curricular activities without consulting the other parent.
Pursuant to s.124 of the Child Support (Assessment) Act 1989 from the date of these orders the father provide child support by way of half of the “gap” for all health and health related expenses and half of all education costs, including costs for school uniforms, books, excursions and extracurricular activities, upon provision of receipts or other proof of payment.
Pursuant to s.125(2) of the Child Support (Assessment) Act 1989 the child support provided for in order (14) not be credited against the father’s child support liability. It shall be in addition to his liability under the formula.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1715 of 2004
| RH |
Applicant
And
| NS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father for a week about shared residence arrangement for the children, RBH born September 1994 and HOH born February 1997.
The mother opposes the application. She initially sought that the children live with her with alternate weekend and half holiday contact with the father. During the course of the hearing she revised that to include after school on Tuesdays and Thursdays and an additional Thursday night as part of the alternate weekend contact.
During the hearing the father also made an oral application under the Child Support (Assessment) Act 1989 in relation to some of the children’s expenses.
Short background and chronology
The parties commenced living together in about 1993 and separated in April 1997. They were never married.
The father was born in January 1963 and is 43 years of age. The mother was born in October 1973 and is 32 years of age.
Both parties have re-partnered, although the father and his new partner apparently have separated on a number of occasions.
The father is a self-employed carpenter. The mother works in sales and marketing and assists her partner in his plumbing business.
The applicable law
Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to section 65E which provides that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in s.60B(2) have particular relevance in these proceedings. They are:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
These provisions emphasise the desirability of regular involvement of both parents in their children’s lives. The involvement and responsibilities ideally should be shared. The contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Section 68F(2) sets out the factors that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, contact or other parenting matters. Paragraph (l) permits the Court to take into account any other fact or circumstance that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed (see B and B: Family Law Reform Act 1995).
The issues
Four major areas of contention have arisen in this case:
·the length and nature of shared care in the past
·communication and co-operation between the parties
·RBH’s educational needs
·the father’s financial contributions.
Past shared care
Both parties agree that since the middle of 2004 the children have lived in a week about arrangement with the two parents. This arrangement was introduced by agreement between the parties. It was formalised by interim orders on 24 January 2005. Changeover occurs after school on Friday.
The father contends however that this only extended an effective shared care arrangement that went back at least to 1999 and in his view to 1997. He says that between 1997 and 1999 he and the mother shared the care on a flexible basis. He worked during the day and the mother at night. He would have the children at least six nights each fortnight, including every second weekend. Under cross-examination he agreed that for about half to three quarters of the week nights when the mother was working the maternal grandmother would look after the children.
The mother testified that immediately following separation the father had the children each alternate weekend. He refused to look after them on the one or two evenings a week she was working. Consequently she arranged for her mother to care for them.
It is not contested that from 1999 the children stayed with the father for at least two and sometimes three nights a week in addition to alternate weekends. The father suggested it was perhaps more.
The mother also says that until 2004 the tasks that the father undertook were somewhat limited. She would bathe them and put them in pyjamas, and often fed them. He did not take them to the doctor nor arrange schooling or pre-schooling. Ms Rees for the mother described it as merely babysitting.
However, on the evidence I am comfortably satisfied that at least since 1999, and possibly 1997, the two children have been in a shared care arrangement with their two parents. As the mother accepted under cross examination over a long period of time, and increasingly since mid 2004, the children had become very used to seeing a lot of their father. The mother agreed that the arrangement was much more than the father being a babysitter – “he’s their father”. Both have a very close relationship with each of the parents.
Communication and co-operation
In the mother’s view communication with the father is an intractable problem. The parties can not communicate or co-operate sufficiently for shared care. Other than during those periods when the father’s partner, J, was living with him, most communication was through the children. This was placing the children under great stress. The father refused to speak with the mother and as a result she missed out on some school activities. The father also failed to provide school reports to her.
Under cross-examination the mother agreed the contact arrangements prior to 2004 required communication between the two about work days and hours and any changes in shifts and routines over a period of five years. Speaking to each other on things such as football registration had occurred on a reasonably frequent basis over a number of years. Ad hoc events had required telephone, email and other direct contact on a fairly regular basis.
Although accepting that there had been some communication difficulties, the father said that it was not as bad as asserted by the mother. He said that they had spoken to each other on the phone probably six times in the two weeks prior to the hearing. This covered issues about school, football, photos and callisthenics.
I am of the view, as the mother conceded under cross-examination, that her concerns about poor communication are somewhat exaggerated.
I have no doubt that it has not been easy, nor that the father has helped. But this is often the position in such circumstances.
On the positive side the parents have cared for the children on a shared basis for almost seven years if not more. The track record is that it has worked. Furthermore both parties expressed a willingness to explore other means such as a communication book which would assist. There is good reason for confidence that once these proceedings are completed communication and co-operation will continue and improve. Ms Styles, the Child and Family Counsellor, also expressed optimism on this score.
RBH’s educational needs
At the time of the hearing HOH was in year 3 at school. She was doing well and no issues were raised about her schooling.
Much emphasis however was placed on the capacity of the parents to provide for RBH’s educational needs.
The mother was concerned that RBH’s schooling in year 5 was not progressing satisfactorily. She had been advised by the school counsellor that he had problems in spelling and grammar. She said that RBH was two years behind his age group in reading. She had consequently enrolled him in a six week course at the University of Canberra to learn a new approach to homework and school work generally. She is also taking him to a behavioural optometrist. The mother said that she sits down with him in the evening and assists him through his spelling, reading and homework generally.
The mother attests to RBH having a behaviour problem at school. In February 2005 a school communication book was put in place to allow the teacher to keep the parents informed on RBH’s behaviour and to make sure he was keeping up with his work. The mother has contributed to the book but the father has never added anything to it.
In his affidavit evidence the father states that RBH is going well at school although he has some difficulties with reading. He had spoken to the teacher about RBH’s progress. He assists RBH with his homework when he is cooking dinner. He says that he always reads the school communication book.
In oral evidence the father acknowledged that RBH had a reading problem. He had always been a slow reader as had the father. The father had spoken to RBH’s teacher two or three times earlier in the year and he was reading to him each night.
Under cross-examination the father was confronted with extracts from the school communication book from February 2005. These variously described RBH as being unsettled, rude, disrespectful, loud and disruptive. The father refused to admit that RBH had behavioural difficulties. He said that he was no different from any other child. He had spoken to RBH’s teacher a couple of times in the last month and no issue about RBH’s behaviour had been mentioned to him.
In her second report (6 June 2005) Ms Styles emphasised that RBH’s difficulty with reading needed to be taken seriously. Unless addressed before he went to high school his self esteem would suffer. The father had not given her the impression that he regarded it as serious.
Ms Styles had not had access to the school communication book when she wrote her reports. However she was able to read the entries before giving oral evidence. She accepted that some matters in the book were trivial and that there were clearly positive as well as adverse entries. There were however more adverse than positive.
Ms Styles would be concerned if the father did not accept that RBH had behavioural problems. The current arrangements were not assisting him to overcome his problems at school. Nevertheless what she had read in the school communication book did not suggest that she write her conclusions in her second report any differently.
It is clear that RBH has educational and behavioural problems. The mother is aware of them. The father is less willing to acknowledge them, particularly the behavioural aspects. He noted that the most recent school report of December 2004 contained no reference to misbehaviour. No mention of these concerns had been put to him when he visited the school earlier in the year. Mr Nash for the father said he had not been given the full picture. In my view he should have picked it up relatively quickly from his reading of the school communication book.
Nevertheless I agree with Mr Nash that the father is now aware of the problem. Both the educational and behavioural issues are treatable. Indeed largely due to the efforts of the mother some measures are in place – the school communication book, the prescription of glasses by a behavioural optometrist and the University of Canberra program.
The father’s financial contributions
The mother contends that the father “has approached his obligations to his children on the basis that he will pay not one cent that he is not obliged to pay”. He currently pays $57.70 per week for each child in child support – approximately $500 a month in total. The mother says that he has rarely contributed towards the children’s expenses. He has also sought to have payments made by him characterised as non agency payments for child support purposes.
Towards the end of 2003 the father became aware that he was about $5,500 in arrears plus interest due to difficulties associated with a tax bill and in assessing his income as a self employed person. He is repaying this with a recent receipt of $4,500 from Centrelink for family tax benefit plus an additional child support payment of $200 a month. The mother criticised the father for applying for the family tax benefit as it has led to Centrelink seeking to recover an overpayment of $12,500 from her.
The father disputes that he does not contribute to the children’s expenses, other than day to day expenses when in his care. He referred to a recent payment of $75 for swimming lessons. But he could not afford $225 at the time for a school excursion for RBH. He also testified that the mother had not told him about other expenses such as RBH’s glasses to which he would be willing to contribute.
The father is meeting his child support obligations. In my view he can not be criticised for seeking his lawful entitlement to the family tax benefit. However it is obvious that the father has been very careful about any expenses over and above his legal child support obligations. He has a habit of seeking a ruling from his child support case officer each time an issue arises.
During the hearing the father said that he would be happy to meet half of the “gap” associated with all health and health related costs and half of all school excursion and similar expenses for the two children. He instructed Mr Nash to make an oral application for the provision of child support to the mother in addition to that provided under the formula. I agreed to hear such an application. The mother contended that any order should also include half the costs of education, including those for school uniforms, books, excursions and extracurricular activities.
Other issues
Both children expressed to Ms Styles the wish to maintain the week about status quo. When asked HOH said that as long as she saw both parents she did not care what the actual arrangements were. Ms Styles said that she could not rule out the possibility that the children’s wishes to some extent reflected an anxiety to avoid disappointing the father. Nevertheless she had the feeling that they had settled into the current arrangement without fuss and had not really considered any other arrangement. Both seemed to feel at home in both households.
Ms Rees submitted that I should treat the children’s wishes as expressed to Ms Styles with some circumspection. However on the evidence before me I am satisfied that they are a genuine reflection of the children’s position.
Ms Styles also referred to RBH’s concern about the disruption involved in moving each week between households – “I have to keep moving around”. But the mother’s final proposals would involve two changeovers plus three evenings per fortnight. This is no less disruptive than week about arrangements.
Conclusions
As noted earlier section 65E requires the Court to treat the children’s best interests as the paramount consideration in parenting matters. The Court is then directed to the factors in s.68F(2) in determining those best interests. I have had regard to all those factors to the extent that they are relevant in reaching my conclusions below, even though they may not have been specifically mentioned.
The children currently are in a week about shared care arrangement. Having regard to all the evidence before me, and particularly those matters discussed above, I am satisfied that a continuation of the week about regime is in the children’s best interests. In summary, my reasons are:
·the children have been in a shared care arrangement at least since 1999 when RBH was five and HOH under two
·both parents have therefore had a very significant amount of time with the children
·by and large the children are settled in this arrangement and feel at home in both households
·both households have similar general routines
·the father has arranged his work schedule to allow for greater free time in the week the children are with him
·even if the father were to move to Royalla, it would not affect the schooling arrangements
·the children are both well loved and cared for by their parents to whom they have a close attachment, as they do with their parent’s partners
·both parents accept the other as a good parent with whom the children should continue to have a close relationship
·I am satisfied the children wish to continue this arrangement
·although there have been difficulties in communication and co-operation, they have not been so significant to prevent shared care in the past nor to outweigh the reasons for continuing such a regime. I am also confident that the difficulties will decrease once these proceedings end and also with the introduction of a communication book between the parties
·RBH’s behavioural and educational needs need to be addressed by both parents no matter what parenting regime is put in place. The father must acknowledge this and become actively involved. To date the mother has been more sensitive to RBH’s needs and shown a greater commitment to resolution of the difficulties
·although I have some concerns on this front, I am not convinced that the regime proposed by the mother would be significantly better. It may in fact be worse given RBH’s desire to continue the current week about arrangement
·it is not as Ms Rees suggested simply a question of in which household would RBH’s educational future be best fostered. Both of the proposed regimes would involve significant time in each household
·as discussed below the father has consented to orders which will require him to meet half of a range of the children’s expenses over and above his obligation under the normal child support formula.
The last matter then concerns the father’s oral application for the provision of child support otherwise than in the form of periodic payments. This was not opposed by the mother as it was for her benefit. It would provide an obligation on the father to pay half of certain expenses as well as the periodic payment determined under the formula.
Noting the agreement between the parties, I propose to order pursuant to s.124 of the Child Support (Assessment) Act that the father provide child support by way of half of the “gap” for all health and health related expenses and half of all education costs, including costs for school uniforms, books, excursions and extracurricular activities, upon provision of receipts or other proof of payment. Pursuant to s.125(2) this child support is not to be credited against the father’s child support liability. It is to be in addition to his liability under the formula.
I am satisfied that in the particular circumstances of this case both these orders are just and equitable and otherwise proper for the purposes of the Child Support (Assessment) Act.
Accordingly I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Beau Wilson
Date: 7 April 2006
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