Henschel & Sartre (No 5)

Case [2024] FedCFamC1F 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Henschel & Sartre (No 5) [2024] FedCFamC1F 339

File number(s): SYC 6123 of 2020
Judgment of: BERMAN J
Date of judgment: 23 May 2024
Catchwords:

FAMILY LAW – CHILDREN – With who the child lives with and spends time with – Where the parties are unable to agree parenting arrangements for a 15-year-old child – Where the parties’ have a deep mistrust for each other and have been engaged in protracted litigation for over 4 years – Where the child currently lives with the applicant and spends each alternate weekend with the respondent – Where the respondent seeks equal shared care – Consideration of the child’s wishes – Where each party proposes that the child’s time spending be subject to his wishes – Where the evidence suggests significant weight should be attributed to the child’s wishes – Where there is insufficient evidence to make parenting arrangements beyond 30 June 2025 – Orders made for time spending until the child is 16 years – Orders to be subject to the child’s wishes following turning 16.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the applicant seeks a departure order for periodic payments and the payment of private school fees – Where the respondent seeks a departure solely for payment of private school fees – Where the applicant does not support the child attending at the private school – Where the respondent presses for the child to attend the private school – Consideration of whether the respondent should make periodic payments – Consideration of whether the payment of private school fees makes otiose the requirement for periodic payments – Order for periodic payments and private school fees.
Legislation:

Child Support (Assessment) Act 1989 (Cth) Part VII, ss 116, 117, 124.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA.

Cases cited:

Baglio & Baglio [2013] FamCA 105

Gilmour & Gilmour (1995) FLC 92-591

Gyselman & Gyselman (1992) FLC 92-279

Division: Division 1 First Instance
Number of paragraphs: 274
Date of hearing: 4 – 6 December 2023 & 26 – 29 February 2024
Place: Heard in Sydney, delivered in Adelaide (via MS Teams)
Counsel for the Applicant: Mr Kearney SC
Solicitor for the Applicant: Karras Partners Lawyers
Counsel for the Respondent: Ms Gillies SC
Solicitor for the Respondent: ATW Family Law

ORDERS

SYC 6123 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HENSCHEL

Applicant
AND:

MR SARTRE

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 MAY 2024

THE COURT ORDERS THAT:

1.The parties shall have equal shared parental responsibility for X born 2009 (“X”).

2.Subject to order 5, X shall live with Ms Henschel (“the applicant”).

3.Subject to order 5, X shall spend time with Mr Sartre (“the respondent”) as follows:-

(a)Each alternate Tuesday from after school (or 3.30 pm if not a school day) until the commencement of school on Wednesday (or 8.30 am if not a school day) commencing 28 May…

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AGLC
Henschel & Sartre (No 5) [2024] FedCFamC1F 339
Case
[2024] FedCFamC1F 339
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Berman J addressed the parenting arrangements and child support for a 15-year-old child, X, in the case of Henschel & Sartre (No 5). The primary legal issues were determining the appropriate parenting arrangements for X until he turns 16 and setting child support payments for the period leading up to his 16th birthday. The court considered the child's wishes, the parents' ability to communicate, and the impact of the parents' ongoing conflict on X.

The court acknowledged that neither party had presented evidence of X's current wishes, despite the importance of considering his views. The evidence from 2021 indicated that X enjoyed time with both parents but preferred to remain primarily with the applicant. The court recognised the lack of communication between the parties, which was detrimental to X's ability to have a meaningful relationship with both parents. The toxic relationship between the parents posed a risk to X, contributing to his anxiety and emotional distress.

Berman J ordered that X would live primarily with the applicant until 30 June 2025, with specified time-sharing arrangements with the respondent. The court emphasised that the arrangements were subject to X's wishes from his 16th birthday. For child support, the court set a fixed rate of $218 per week until 30 June 2025, with an agreement for the respondent to pay X's private school fees. The court also imposed restrictions on the parents' communication with X and each other to mitigate the impact of their conflict on him.

Orders

Orders of the court

SYC 6123 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HENSCHEL

Applicant

AND:

MR SARTRE

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 MAY 2024

THE COURT ORDERS THAT:

1. The parties shall have equal shared parental responsibility for X born 2009 (“X”).

2. Subject to order 5, X shall live with Ms Henschel (“the applicant”).

3. Subject to order 5, X shall spend time with Mr Sartre (“the respondent”) as follows:-

(a) Each alternate Tuesday from after school (or 3.30 pm if not a school day) until the commencement of school on Wednesday (or 8.30 am if not a school day) commencing 28 May 2024;

(b) On each alternate weekend from immediately after school on Friday (or 3.30 pm if not a school day) until the commencement of school on the following Monday (or if a public holiday until 8.00 pm) commencing 31 May 2024;

(c) During the school holidays each year for one half of the school holiday period as may be agreed between the parties and failing agreement as follows:

(i) With the applicant in the first half and the respondent in the second half of the Christmas school holidays that commence in 2025 and every other year ending with an odd number;

(ii) With the respondent in the first half and the respondent in the second half of the Christmas school holidays that commence in 2024 and every other year ending with an even number;

(iii) For the purpose of these orders the “school holidays” shall be defined as commencing on the last day of school term that X is required to attend, and as concluding at the commencement of the school on the first day that X is required to attend school for the following term as determined by the calendar published by the school at which X is attending; and

(iv) Unless otherwise specified, any handover during school holiday periods shall occur at midday on the day being the midpoint of the school holiday period.

4. Subject to order 5, X shall spend time with the parties on special occasions as agreed and failing agreement, the following shall apply:

(a) On X’s birthday each year, X shall spend time with the party who’s care he is not otherwise in on the day from 3.00 pm to 8.00 pm;

(b) On each of the party’s birthday, if X is otherwise not in the care of that parent, if the birthday falls on a school day, from 3.00 pm to 8.00 pm but if the birthday falls on a non-school day from 1.00 pm to 5.00 pm;

(c) X shall be in the applicant’s care on Mother’s Day from 6.00 pm on the day preceding Mother’s Day until 5.00 pm on Mother’s Day;

(d) X shall be in the respondent’s care on Father’s Day from 6.00 pm on the day preceding Father’s Day until 5.00 pm on Father’s Day;

(e) X shall be in the care of the applicant from midday Christmas Eve to midday Christmas day and in the care of the respondent from midday Christmas day to midday Boxing Day in 2025 and every other year ending with an odd number;

(f) X shall be in the care of the respondent from midday Christmas Eve to midday Christmas Day and in the care of the applicant from midday Christmas Day to midday Boxing Day in 2024 and every other year ending with an even number.

5. Paragraphs 2, 3 and 4 are subject to X’s wishes as and from 30 June 2025.

6. Each of the parties shall be at liberty to attend X’s extra-curricular activities regardless with whom X spends time or resides with.

7. Each of the parties shall inform and keep the other informed in writing at all times of X’s health and/or health related issues.

8. In the event X is involved in a medical emergency, the party with whom X is at the time shall in writing notify the other immediately and provide details of the health care professional or medical facility that X attends.

9. Without admissions, each party be restrained by way of injunction from:

(a) Making any critical, disparaging, denigrating, and/or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to X or in the presence or hearing of X, with such order to include verbal, written or electronic means including email and text message;

(b) Allowing any other person or persons to make any critical, disparaging or derogatory remarks about the other parent or any member of the other party’s family including any partner of the other party to X or in the presence of hearing of X, such order to include verbal, written or electronic means including email or text messages; and

(c) Making any threat to X or from otherwise saying or doing anything in the hearing or in the presence of X which may be considered intimidating or threatening.

10. Unless otherwise agreed between the parties in writing, and pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the parties are permitted to remove X from the Commonwealth of Australia to travel overseas during the period in which X is living with them, or is mutually agreed in writing, providing that the travelling party has first provided the other party with twenty-one (21) days prior written notice (or other such notice period as agreed) of the intended trip, specifying proposed dates, destination, travel insurance and contact details whilst X is absent from the Commonwealth.

11. Each of the parties shall do all things necessary, including signing all documents within fourteen (14) days of any request to do so to ensure that X has a current passport at all times.

12. Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the Administrative Assessment of Child Support payable by the respondent for X as follows:

(a) For the period from 15 March 2024 to 30 June 2025 the annual rate of child support be set at ELEVEN THOUSAND THREE HUNDRED AND THIRTY-SIX DOLLARS ($11,336) or TWO HUNDRED AND EIGHTEEN DOLLARS ($218) per week.

13. Pursuant to s 124 and s 126 of the Child Support (Assessment) Act 1989 (Cth) by consent the respondent shall pay all school fees, costs and related charges for X while he attends at RR School provided that the annual rate of child support payable by the respondent either pursuant to these orders or any subsequent administrative assessment is not to be reduced by reason of the payments as required by order 12(a) herein.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Both parties sought to rely upon the expert report of Dr TT dated 21 December 2021. BACKGROUND The applicant was born in 1972 and is 51 years of age. The respondent was born in 1964 and is 59 years of age. The parties commenced cohabitation in 2003 being the date of their marriage. After a period of about 17 years of cohabitation, the parties separated on 20 April 2020. Proceedings were commenced by the applicant on 2 September 2020. There is one child of the relationship, X, who was born in 2009 and is currently 15 years of age. Whilst there has been some ability by the parties to agree parenting arrangements for X, the current arrangements have been largely determined pursuant to the interim orders made on 3 February 2022 summarised as follows: (1)That the applicant be restrained from relocating the residence of X to the Town O property or outside of the Sydney metropolitan area.(2)That X attend RR School for the academic year commencing 2022 noting the respondent’s filed undertaking dated 2 February 2022 to pay the school tuition fees and all other expenses of X attending RR School.(3)That X lives with the applicant and spends time with the respondent as follows:(a)Commencing 8 February 2022, each Tuesday from after school (or 3.30 pm) until 8.00 pm; and(b)Commencing 11 February 2022 and each alternate week thereafter, from after school (or 3.30 pm) on Friday until 8.00 pm on a Sunday.(4)That X spends one half of the school holiday period with each of the parties as may be agreed but failing agreement with the respondent in the first half and the applicant in the second half of the Christmas school holidays commencing in 2022 and with the applicant in the first half and the respondent in the second half of the school holidays commencing in 2023 and alternating in each year thereafter. The orders also provided for the parenting arrangements to deal with the birthdays of each of the parties, Mother’s Day, Father’s Day and Christmas. X lives primarily with the applicant at her rental accommodation in Suburb Z and when with the respondent, at the parties’ Suburb W property, being the former matrimonial home. As discussed, X currently attends RR School as a day student. There has been some contention between the parties as to whether X would transition to a boarding student in 2024. The respondent considered that the parties had reached agreement that X would board at RR School whereas the applicant considered that it was a possibility but by no means a certainty. As matters have transpired, the parties did not reach agreement that X would board and there is some credible assertion that irrespective of the separate or joint intentions of the parties, X may not have wanted to board. Taking into account that X will be 16 years of age when he enters year 10 at RR School in 2025, whether he is enrolled as a boarding student will be a matter subject to his wishes although the parties suggested that if he were to board, there would no longer be an available day student place.

Evidence

Evidence Before The Court

As discussed, the assessment for the period 15 December 2023 to 31 December 2024 is in the weekly rate of $118.69 calculated monthly in the sum of $516.08.THE EVIDENCEThe applicant Consistent with the Financial Statement sealed 7 August 2023, the applicant provides consulting and advice via S Pty Ltd to P Company. She receives $154,830 per annum by way of director and chair fees (“exhibit 12”). In addition, the applicant sits on the board of an institution on a pro bono basis but also holds a board position for which she receives a modest honorarium of $4,000 per annum. It is not likely that the applicant’s income will significantly increase in the foreseeable future save and except as to any change in her financial circumstances that may arise following a resolution of the property settlement proceedings. It is likely that until the proceedings have resolved, the applicant will continue to reside in the rented accommodation in Suburb Z even though the rental is in the sum of $1,800 per week, an amount that exceeds the totality of the applicant’s income. At present, X travels to RR School by bus leaving home at 7.10 am. X returns by bus to the Suburb Z property. When with the respondent, X travels back to the Suburb Z property on Sunday evening by Uber. The applicant concedes that X can see the respondent as much or as little as he wants. The applicant acknowledges that significant weight should be given to X’s wishes although, it is notable that neither of the parties have given any indication of their understanding of X’s wishes. It is unfortunate that neither party sought a process that would better ascertain the future parenting arrangements that X considered would best suit his needs. The current arrangement is that rather than X going to school on Monday morning following his weekend with his father, the applicant still seeks that X return to Suburb Z at the conclusion of his time with the respondent. It is agreed that the travel time from the Suburb W property to RR School is about ten minutes. The applicant’s opposition to X spending Sunday night with the respondent was potentially inconsistent with her acknowledgement that X had reached a stage where he could make his own decisions. The opposition by the applicant appears to be founded in a contention that X was troubled about his father’s conduct in 2020 consequent upon the assertion that the respondent consumed alcohol to excess, was always angry and at times X was scared of the respondent consequent upon his aggressive conduct. The applicant was adamant that X was still making comments about the respondent in 2022 which were similar to his expressed concerns in 2020. Of recent date, X had obtained some casual part-time employment on Friday evenings. To some degree, X’s part-time employment clashed with the current orders that would see X come into the respondent’s care each alternate Friday after school. The acceptance by X of part-time employment created a difficulty in that the applicant only advised the respondent after X had accepted the job. X finishes work at 10.30 pm and it would be difficult for X then to go to the respondent’s home. The applicant agreed that she could have been more communicative with the respondent but thought that her conduct was consistent with the best way forward in order to protect X from what she considered would be another area of inevitable conflict.

Decision

Reasons for decision

The parties have substantial assets and as such, I consider that it would be otherwise proper for a departure order to be made.CONCLUSION For reasons that are best understood by the parties, evidence was not presented as to X’s current wishes and perceptions. There is no doubt that such evidence could have been obtained and indeed Dr TT in 2021 foreshadowed that it would be a logical and further step as X became older. The consequence is that it removes the ability to determine where X is likely to reside over the next two years. The best that I can do is to determine that X is likely to remain in the primary care of the applicant until 30 June 2025. An unfortunate consequence of the trial as to the substantive issues of property settlement and division being adjourned on two occasions will likely mean that the litigation will be heard in the middle of 2025. The circumstances of each of the parties, and possibly that of X in terms of the extent of time he will spend with each of the parties, may be better known. The result is that I propose to order that the respondent pay periodic child support fixed in the sum of $218 per week for the period from the date of this order to 30 June 2025. Thereafter, given that there will be over one year before X turns eighteen, the orders will allow either an agreement to be reached between the parties but in the absence of agreement, then an assessment to be determined pursuant to the administrative process. It must be remembered that a Court should be reluctant to engage in issues of child support in circumstances where there is a legislative process to enable an administrative outcome to be achieved. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

It is reluctantly accepted by the respondent that at some point in the next two years, the parenting orders that he seeks will have no utility. PARENTING CONSIDERATIONS Meaningful relationship As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”. As considered, the Court is required to focus on the practicality of each of the party’s proposal and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case. The parties agree that it is important for X to maintain a relationship with each of them. It is not suggested by either party that X does not have a meaningful relationship with each of them. There is considerable support for the strength of the underlying relationship between X and each of the parties arising from matters raised by Dr TT albeit concerning his observations made in 2020/2021. It is also not controversial that the current arrangements in any way limit or determine the existing relationship that X has with the applicant but in particular, with the respondent.Is the child at risk? It is not suggested that either of the parties presents as a significant risk to X other than the anxiety and emotional distress experienced by him as a direct consequence of the toxic relationship between the parties and the ongoing and unrelenting litigation. It was self-evident in the presentation of each of the parties that they hold the other in deep mistrust. A prime example is the reluctance of the respondent to advise the applicant of his overseas travel in case the applicant used the opportunity to re-enter the Suburb W property. X is well aware of the level of disharmony between the parties and whilst it is only a matter of speculation, to the extent that the respondent considers there are some behavioural concerns evident in X’s behaviour, the extent to which that may be a reaction to the ongoing conflict is a potential factor. Wishes of the child It is difficult to assess whether X currently holds a strong view given neither party, and likely for different reasons, sought to undertake an update or addendum assessment consistent with the suggestion of Dr TT. In 2021 Dr TT was confident that X enjoyed his time with the respondent and whilst wanting to remain in the primary care of the applicant, in particular during the school week, he was happy to spend more time with the respondent over the weekend. There is also evidence that supports a finding that X enjoys his time with the maternal and paternal extended families. It is not a matter about which the Court can speculate as to whether X’s wishes in 2021 reflect his current position. There is some evidence that the parties are respectful of X’s wishes in terms of his decision not to seek to be a boarder at his school.