Ibarra & Ibarra
[2023] FedCFamC1F 878
•19 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ibarra & Ibarra [2023] FedCFamC1F 878
File number(s): CSC 794 of 2021 Judgment of: JARRETT J Date of judgment: 19 September 2023 Catchwords: FAMILY LAW – CHILD SUPPORT – Where respondent sought a lump sum child support payment – Where effect of the order sought was the compensate the respondent for her previous non-compliance with orders made by consent – Application dismissed Legislation: Child Support (Assessment) Act 1989 (Cth) ss 123, 124
Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2) )
Division: Division 1 First Instance Number of paragraphs: 13 Date of last submission/s: 19 September 2023 Date of hearing: 19 September 2023 Place: Cairns Counsel for the Applicant: Mr Raeburn Solicitors for the Applicant: Francis Family Law Counsel for the Respondent: Mr Baston Solicitors for the Respondent: Keir Steele Waldon Lawyers Counsel for the Independent Children’s Lawyer: Mr Williams Solicitors for the Independent Children’s Lawyer: Collier Lawyers ORDERS
CSC 794 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IBARRA
Applicant
AND: MS IBARRA
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
19 SEPTEMBER 2023
BY CONSENT THE COURT ORDERS THAT:
1.The respondent have sole parental responsibility for all major decisions concerning the long term care, welfare, and development of the children X born 2009 and Y born 2013, save and except the following:
(i)the respondent shall not relocate the children from City B unless with the written agreement of the applicant or Order of the Court; and
(ii)the respondent shall not change the children’s surname.
2.The respondent shall consult with the applicant about decisions to be made in the exercise of her sole parental responsibility as follows:
(i)she shall inform the applicant about the decision/s to be made as soon as is reasonably practicable;
(ii)the applicant is to respond to the respondent within three (3) days advising of his view on the particular issue;
(iii)the respondent must genuinely consider any views expressed by the applicant; and
(iv)after the period of three (3) days had expired and within three (3) days thereafter the respondent is permitted to make the decision and inform the applicant of the decision.
3.Noting that the children are participating in the extracurricular activities listed at Notation A, and subject to any written agreement between the parties, neither parent shall cause or permit a child to be enrolled in, and/or participate in, any new extracurricular activity that requires the other parent to facilitate the child's participation in any such activity during the time that the child spends with the other parent.
4.Each parent will have the day-to-day responsibility for the children, whilst the children are in that parent’s respective care.
5.The children live with the respondent.
6.For the purposes of order 39, the applicant will take the children to any of their respective planned extracurricular and sport activities pursuant to order 3.
7.The children shall spend time with the applicant for one half of the gazetted Queensland school holidays as follows:
(i)the first half with the applicant in odd numbered years (including Christmas Day);
(ii)the second half with the respondent in odd numbered years;
(iii)the second half with the applicant in even numbered years; and
(iv)the first half with the respondent in even numbered years (including Christmas Day).
8.For the purposes of these orders:
(i)the school holiday period is to be the Queensland Gazetted School holidays except where both children are enrolled in private school (non-state school) then the school holiday period shall be the dated prescribed by the children's school;
(ii)the school holiday time shall commence when a parent's time falls in the first half of the holiday from after school on the day the school terms finishes and conclude at 12 midday on the day calculated to be half of the holidays;
(iii)when a parent’s time falls in the second half of the holiday from 12.00 midday on the day calculated to represent half of the holidays and shall end before school on Monday;
(iv)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude on the first day of the new school term. The number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
9.Notwithstanding, orders 5 and 39, the children shall spend time with each parent as follows:
(i)with the respondent on Mother's Day from 9.00am until the commencement of school the next day;
(ii)with the applicant on Father's Day from 9.00am until the commencement of school the next day.
10.The respondent or applicant have liberty to contact the children on their birthdays, when they are in the other parent's care at 7pm on the birthday by using the Talking Parents App.
11.The children be able to telephone the parent with whom they are not residing at all reasonable times whilst they are in the other parent’s care and that the other parent shall facilitate such contact by allowing the children to use their own mobile devices or to use that parent’s mobile telephone, ensuring the children have privacy when speaking to the other parent.
12.The parents must only communicate on matters relating to the children via Talking Parents App, expect in circumstances of a serious medical emergency, when such communication be by telephone only, and in accordance with order 26.
13.All changeovers which do not occur from the children’s schools, will occur in the area that is out the front of a supermarket at City B Shopping Centre or other such venue as agreed between the parents with a preference given to a McDonald’s Restaurant.
14.The applicant is restrained from attending changeovers.
15.If the applicant is not able to arrange a nominated person to attend changeover, he must notify the respondent in writing, at least four (4) hours in advance, and must not approach within twenty (20) metres of the respondent at the changeover location and surrounding area.
16.The parents are restrained from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children or permitting any other person to do so.
17.Neither parent attend any school or extra-curricular activity while the children are in the care of the other parent, without first advising the other parent in writing, giving the other parent forth-eight (48) hours' notice of the intention of attending.
18.To the extent it is practical and reasonable to do so, the parents will ensure the children use a single medical general practitioner and/or dental provider.
19.To the extent that is practical and reasonable to do so, each parent must allow the children to have privacy when communicating with the other parent.
20.The parents must not interrogate or otherwise require the children to discuss their communication with the other parent.
21.The parents are restrained from denigrating the other parent, the other parent’s partner or the other parent’s family and are to remove the child from any third party who is denigrating the other parent, the other parent’s partner or the other parent’s family.
22.The parents are restrained from exposing the children to abuse or family violence within the meaning of section 4AB (2) of the Family Law Act 1975 (Cth), including but not limited to:
(i)physical violence in any form;
(ii)causing the child to suffer serious psychological harm;
(iii)verbal abuse;
(iv)neglect of the child;
(v)intimidation or threats; and
(vi)intentional destruction or damage to property
23.For the purposes of order 22, the meaning of family violence as set out in section 4AB (1) of the Family Law Act 1975 (Cth), is behaviour that is violent, threatening or other behaviour by the father towards the other parent and/or the children that coerces or controls or causes the respondent or the children to be fearful, nor allow any other person to do so.
24.The applicant must not come within 20 metres of the respondent at all times including but not limited to changeover, school events, at any location or where the other parent is living, staying or their place of work, nor allow any other person to do so.
25.The parents must not follow or approach the other parent at all times, nor allow any other person to do so with the exception of conducting a changeover provided for in orders 13 and 14.
26.The parents are prohibited from contacting the other parent by telephone and SMS except in a medical emergency of one or both of the children and in accordance with order 12.
27.These orders shall act as an authority to the children’s school to provide each parent (at that parent’s expense) with information about the children’s education, progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents, subject to the discretion of the school.
28.These orders shall act as an authority to the children’s medical practitioners to provide each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of all medical records and reports, subject to the discretion of the medical practitioner save and except for any of the children's counselling notes and records including records held by the City B Regional Domestic Violence Service.
29.The respondent shall keep the applicant informed of all names and addresses of any and all treating medical or other health practitioners who may be treating the children and authorise those practitioners to provide the applicant with all such information in their possession relevant to the children and failing the provision of any such authority this order shall of itself operate as such authority.
30.The parents shall keep each other informed of their current residential address, email address and telephone number and shall advise each other of any change within forty‑eight (48) hours of any such change.
31.Each parent consents to X born, 2009 and Y born, 2013 ("the children") having an Australian passport and upon either parent receiving a written request from the other parent to sign a passport application for the children, to obtain or renew their passports that parents shall do all such acts and things and sign all necessary documents to obtain an Australian passport for the child within seven (7) days of the making of the written request.
32.In the event that either party fails to sign a passport application for the children within seven (7) days of the making of a written request by the other parent to do so, then the requesting parent shall be permitted to solely apply for the issue of Australian passports for the children.
33.Each parent consents to the children travelling internationally provided that:
(i)the other parent is provided with a copy of the proposed flight and travel itinerary and contact addresses and telephone numbers for the children, not less than fourteen (14) days prior to the date of travel;
(ii)the travelling party provided the finalised flight and/or travel itinerary, air tickets and contact addresses and telephone numbers for the children, not less than seven (7) days prior to the travel date;
(iii)that the travel occur in the party's permitted time with the children in accordance with these orders unless otherwise agreed in writing by the other party prior to the proposed travel;
(iv)that a suitable travel insurance cover is in effect for the children in respect of the proposed travel at the time of travel.
34.The passports of the children shall not be used for travel by either the respondent or the applicant except in accordance with these orders or an order of a court.
35.When not being used for travel in accordance with these orders, the passports of the children are to be held by the respondent.
36.Upon receiving notification of travel pursuant to these orders by the applicant, the respondent must release the children's passports to the applicant within fourteen (14) days of the proposed travel departure date. The applicant must return the children's passports to the respondent within seven (7) days of his return to City B.
37.In the event that any disputes arise in relation to the interpretation of these orders, or another parenting matter for the child, and the parents are unable to reach an agreement:
(i)the parent who wishes to raise an issue for dispute resolution will contact the C Family Services to obtain an appointment and notify the other parent within three (3) days of the appointment date;
(ii)the parents shall attend upon C Family Services thereafter and make a genuine effort to resolve the dispute: and
(iii)the respondent and applicant shall equally contribute to any cost of family dispute resolution.
38.Neither parent is entitled to make any Initiating Application for parenting orders in respect of these children without first seeking leave of a court of competent jurisdiction.
THE COURT FURTHER ORDERS THAT:
39.The children shall spend time with and communicate with the applicant at all times as may be agreed between the parents in writing but failing agreement as follows:
(i)from the end of the school day Friday or if Friday is a pupil free or non-school day, from after school on Thursday until the commencement of school Tuesday and on each alternate weekend thereafter during the school terms, including taking the children to any of their respective planned extracurricular activities and sports.
40.Each parent is at liberty to communicate with the children by telephone or video call on each Sunday at 7.00pm when the children are in the care of the other parent by using the Talking Parents App.
41.The respondent’s application for lump sum child support be dismissed.
IT IS NOTED:
A.The parents acknowledge, subject to any change in the below schedule outside of the parents’ control, that the children currently participate in the following extracurricular activities:
·X:
·D Activity: 6.5 hours, three times per week on Thursday and Saturday
·E Activity: 2 hours once per week Wednesday
·Y:
·Sports: 2 days per week (3 hours) + 7 days in holidays + regional carnivals
·Club Sport: 2 days per week + weekend games (6 months per year)
·F Activity: 1 hour per week (6 months per year)
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
In respect of the telephone issue, there will be one telephone call a week for the reasons submitted by Mr Williams primarily. These children are spending time with each of their parents and one telephone call a week is sufficient, but in addition to that is order 14, which provides for the children to have the ability to call each parent whenever they wish. As Mr Baston suggested, the parents will be able to call the children on their mobile phone. So, the need for an order like order 12 is a little bit mysterious, but in the circumstance where I am asked to make a decision about that by the parties, I will do so. It will be one.
As to the time spending arrangements, I prefer the orders of the respondent to that of the applicant for these reasons. First, I accept wholeheartedly the submissions made by Mr Baston on behalf of the respondent about the capacity of the applicant to organise himself. These are busy children. Their schedules mean that they will have to be organised and apart from anything else, his conduct of these proceedings leaves nothing other than an impression that he is not capable of organising very much, frankly.
There are also the propositions put by Mr Williams to the effect that, really, ultimately whether it is nine/five or ten/four does not much matter to these children. I accept immediately that it matters a lot to these parents, but I am not here to make orders about parents or for parents. I am here to make orders about what is in the best interests of these children. They have been subjected to significant conflict by their parents for some time now and this may well quell some of that conflict. An additional day will provide an additional opportunity for there to be exposure to conflict from the parent with whom they spend that additional day. I note the agreed order for sole parental responsibility in respect of major decisions, but the prospect of conflict in respect of day-to-day decisions is enhanced the more time they spend in the applicant’s care. For those reasons the arrangements will be ten/four.
The remaining issue to be dealt with in this case is the respondent’s claim for an order for lump sum child support. That application is made pursuant to s 123 of the Child Support Assessment Act 1989, and s 124 of the Act gives the Court a discretion, in such an application, to make orders for the payment of child support other than by way of periodic payment where the court is satisfied that it would be just and equitable as regards to the child, the carer entitled to child support and the liable parent, and otherwise proper to make an order that the liable parent provide child support for the child other than in the form of periodic amounts paid to the carer entitled to child support.
The application is made against the background of orders that were made by consent between these parties by a judge of the Federal Circuit Court of Australia, as it then was, on 13 October, 2020. Relevantly, those orders provide in paragraph 13 – 17:
13.Without prior written consent of both parties, other than as provided by these orders, the parties are hereby restrained from enrolling the child in an extracurricular activity that requires the other parent to facilitate the child’s involvement in that activity on days falling during the time the child is living with or spending time with that parent pursuant to these orders.
14.Unless otherwise agreed between the parents in writing, the parents shall facilitate each child to participate in a maximum of two agreed activities each semester in the [City B] area.
15.In the event the parents cannot agree on the said agreed activities, each parent shall select one activity for each child in the [City B] area each, and the parents shall each facilitate the children participating in the said selected activities.
16.The parents shall equally share in the costs of the agreed and/or the selected activities and each shall reimburse to the other parent one half of any payment made by that parent in relation to the said activities within seven days of production of a receipt evidencing payment.
17.Notwithstanding these orders, the parents are at liberty to enrol either child in any extracurricular activities on days falling during the scheduled time the child is living with or spending time with themselves pursuant to these orders, with that parent to be solely responsible for payment of any expense of, or incidental to that activity.
When the proceedings were called this morning before me, I was presented with some orders that the parties have agreed and which I am content to make. Those orders, however, do not purport expressly to discharge the orders made on 13 October, 2020. I take it that by implication all of those orders are to be discharged, but it is not entirely clear. In any event, the respondent pursues her application for child support to be provided in a way other than by way of periodic payment. Her evidence that bears on this issue is to be found mostly, I think, from paragraph 415 onwards in her affidavit filed for the purposes of the trial in this matter.
In that part of her affidavit, she talks about payment of the expenses for the children from a joint account and she talks about how she has, from time to time, funded the expenses of the children without assistance, through Centrelink payments and borrowings from others. She talks about the cost of litigation and how she has been able to get by until the parties were able to agree on a property settlement in 2020. She then talks about the costs of the extracurricular activities of the children and she says that since the final orders were made in October, 2020 the applicant has not contributed to one half of all of the children’s extracurricular expenses as set out in a table that appears later in her affidavit at paragraph 432. The table is divided into years. It starts with the year 2020 and ends with the year 2023. It sets out the total cost of the particular activity that is described in the table, the amount paid to date and who has paid it, according to the mother’s evidence, and what is outstanding.
She gives evidence that in response to her requests for reimbursement for payment for half of the costs, the applicant has shirked his responsibilities. For example, in paragraph 424 of her affidavit she says:
For the last six years in the Talking Parents app, [the applicant] states that he does not agree for the children attending extracurricular activity that I have arranged for them. He has also stated that he has not agreed in writing and this is a reason he gives for not paying one half of the fees and cost, despite the consent orders requiring him to.
Paragraph 425 sets out the respondent’s evidence that she effectively organises the activities for the children first without securing the consent of the applicant to those activities. She says in that paragraph:
He does not tell me he objects to either child being enrolled to participate in activities after school. On 28 March 2023 in a message to me he states, “[respondent], order 25 of the current orders say that any extracurricular activities are to be agreed to in writing by both parents. I did tell [X] she could do [classes]. There was no agreement about the [D Activity]. I will transfer $110 to your account for [E Activity]. I never agreed for [Y] to do [classes], but moving forward I am happy to discuss whatever activities the girls wanted to do, and once we are in agreement to pay half the cost when an invoice is provided”.
Paragraph 426 reiterates a message from the applicant to the same effect, that is, the Court orders are clear and he intends to abide by them and will meet the costs of activities that are agreed between the parties. The message set out in paragraph 426 from the applicant to the respondent ends in this way:
The fact that you unilaterally enrolled the girls in activities does not place any obligation on me to pay 50 per cent after the fact. I pay full child support.
In paragraphs 427 and 428 of her affidavit, the respondent seems to complain that despite the applicant not contributing to the costs of the children’s extracurricular activities, the applicant has the benefit of attending the extracurricular activities with the children. He goes to their performances at D Activity and to their performances at concerts and the like. The flavour of those paragraphs in her affidavit tends to suggest some resentment on her part that, despite her view that he ought to be paying half and that he is not, he is enjoying the benefits of his children participating in those activities.
The respondent’s evidence makes it clear that she has not complied with the orders of October, 2020 in that she has enrolled the children in various extracurricular activities beyond the provisions of the orders without the applicant’s agreement. The evidence demonstrates that the respondent has not complied with the orders of October, 2020 in that she has enrolled these children without the applicant’s written agreement to do so. Written agreement between the parties for the purposes of order 13 and order 16 was a precondition to payment. The only exception was in respect of selected activities as that term is defined in paragraph 15.
The child support orders that the respondent now seeks, insofar as they are retrospective, seek to ameliorate the effect of her noncompliance with the October, 2020 orders. That is not an appropriate use of the child support legislation, in my view. As a matter of discretion, I would decline to make any orders given that there was over the relevant period a consent order made by a court, the validity of which has not been challenged. That the respondent now complains and now wishes to have rectified in some retrospective fashion the effect of those orders, notwithstanding her noncompliance, is not an attractive argument. In my view, that application should be dismissed.
As to the paying for non-periodic payments into the future, that is a matter, in my view, which is best dealt with through the administrative processes established by the Child Support (Assessment) Act 1989 (Cth). It is a matter in respect of which the parties can provide proper evidence. I do not have any proper evidence before me about the likely cost for these children into the future, and it is a matter in respect of which there will be procedures, including objection and appeal procedures, available to the parties should they be dissatisfied with the result. This application was only commenced on 8 August, 2023 in the lead-up to a trial before me. In my view, it has been brought on with much haste and in circumstances where the evidence is insufficient to establish that it is either just and equitable as regards to the children, the carer entitled to child support or the liable parent, or otherwise proper for there to be the orders applied for.
In those circumstances, the orders will be as agreed between the parties and earlier pronounced before me today. The application for lump sum child support will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 19 September 2023
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