JACOBOVA & STEIN
[2016] FamCA 825
•23 September 2016
FAMILY COURT OF AUSTRALIA
| JACOBOVA & STEIN | [2016] FamCA 825 |
| FAMILY LAW – CHILD SUPPORT – Arrears – enforcement – mother’s application to enforce consent order for non-periodic child support in arrears granted in part – father’s application to discharge the order refused. FAMILY LAW – CHILDREN – Mother’s change of name application refused –disputed spend time arrangements – application for change to time spent on days of religious and cultural significance – injunction sought to prevent father travelling with child to countries that are not signatories to the Hague Convention – application for injunction refused. |
| Child Support (Assessment) Act 1989 (Cth), ss 117, 123, 124, 129 Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CC(3), 60CD, 61B, 61C(3), 64B(2), 64B(2)(i), 64B(5), 65Y, 66S, 68B, 106, 109A Family Law Rules 2004 (Cth), rr 20.01(1), 20.01(2), 20.04, 20.05(a), 20.07 |
Beach & Stemmler (1979) FLC 96-92
Black & Kellner (1992) FLC 92-287
C & C [2007] FMCAFam 322
Chang & Su (2002) FLC 93-117
Chapman & Palmer (1978) FLC 95-10
Daniels & Bell [2007] FamCA 152
Mathieson v Hamilton [2006] FMCAfam 238
Suiter & Suiter [2014] FCWA 40
Wreford & Caley [2010] FamCAFC 21
| APPLICANT: | Ms Jacobova |
| RESPONDENT: | Mr Stein |
| FILE NUMBER: | MLC | 13605 | of | 2007 |
| DATE DELIVERED: | 23 September 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 26, 27, 28 & 29 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Davis |
| SOLICITOR FOR THE APPLICANT: | Lennon Mazzeo Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mort |
| SOLICITOR FOR THE RESPONDENT: | Lewenberg & Lewenberg Solicitors |
Orders
IT IS ORDERED BY CONSENT THAT
Paragraph 2 of the court orders made 21 November 2008 and paragraphs 14 and 15 of the consent orders made 21 November 2008 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child X STEIN born … 2003 (“the child”) from the Airport Watch List at all points of international arrivals and departures in Australia.
THE COURT ORDERS THAT
As soon as practicable, the Court forward a copy of these orders to the Australian Federal Police.
The mother’s application to restrain the father from travelling with the child to any country which is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction be dismissed.
Pursuant to rule 20.07 of the Family Law Rules 2004 (Cth) (“the Rules”), it is declared that the amount of $47,507 (“the total payment”) is an obligation to pay money and due to the mother and payable by the father under paragraph 16 of the orders made by this Court on 21 November 2008 within 60 days of today’s date;
In the event that the total amount is not paid within 60 days in accordance with paragraph (4) herein:
(a)pursuant to rule 20.05(a) of the Rules, the motorcycle in the possession of the father be seized and sold forthwith to satisfy in part the total payment; and
(b)the balance outstanding after the proceeds of the sale of the motorcycle are paid to the mother, be paid by the father by way of instalments of $500 per week to the mother.
In the event that any instalment is not paid pursuant to paragraph (5)(b) herein, that penalty interest applies to that instalment as fixed by rule 17.03 of the Rules on any amount outstanding under the total payment.
The father keep the mother advised at all times of any change of the name and address of his employer or contractor including particulars of their previous name and address.
The child’s time with the father be suspended from 4.00 pm on the afternoon on which Passover begins (erev Pesach) until 6.00 pm two days thereafter (the day following the second Seder night) from 2017.
The child’s time with the father be suspended from 4.00 pm on the afternoon on which the Jewish New Year begins (erev Rosh Hashanah) until 6.00 pm on the day on which the Jewish New Year concludes.
The mother’s application that she be permitted to change the surname of the child to Jacobova-Stein is dismissed.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobova & Stein has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13605 of 2007
| Ms Jacobova |
Applicant
And
| Mr Stein |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of the child, X (“the child”), aged 12, are in dispute about the following issues:
·enforcement of arrears of orders for the provision of child support otherwise than in a periodic amount (hereafter referred to as “non-periodic child support”) pursuant to final orders made by consent in November 2008 (“the 2008 final consent orders”), and whether the orders pursuant to which the arrears have accrued should be discharged;
·whether the child’s name should be changed;
·whether the father should be restrained from travelling with the child for holidays to any country which is a non-Hague Convention signatory; and
·whether the final parenting orders should be changed to provide for the child to spend time with her father for the Jewish festivals of Passover and Jewish New Year.
The order for non-periodic child support was not registered with the Child Support Agency. The quantum of the arrears of non-periodic child support was agreed at trial but the arithmetic in the table of school fees and ancillary expenses accepted by the parties was incorrect. The father’s liability amounts to $99,216 instead of $99,763. Neither party has made any previous application regarding these arrears.
These issues remained unresolved during a trial where, amongst other things, the issues of parental responsibility and the other arrangements for the child to spend time with the father were agreed in the course of proceedings. On the third day of the trial (28 April 2016) final parenting orders were made by consent.
In accordance with those final parenting orders, the mother has sole parental responsibility for the child and the child lives with her mother. The 2008 final consent orders had also provided that the mother have sole parental responsibility for the child and that the child live with the mother.
Under the new orders, the child spends time with her father each alternate weekend from after school or 3:30 p.m. if a non-school day on Friday until before school or 8.00 am if a non-school day on Monday, to be extended to before school Tuesday in the event that Monday is a public holiday. Orders were also made for the child to spend time with her father for the first half of all school holiday periods, on her birthday, the father’s birthday and Father’s Day. These arrangements commenced on 13 May 2016.
Pursuant to those orders, the child spends time with the father on certain festivals with religious or cultural significance, including Tu Bishvat, Lag B’Omer and Yom Ha’atzmaut.
The parents agreed that upon delivery of judgment for the remaining outstanding issues they would complete the necessary documentation to enable either one of them to apply for or renew the child’s passport. As part of those final parenting orders, the parents agreed that both parties be permitted to take the child overseas for holidays provided certain conditions were met. However both parties also agreed to be restrained from making any application on behalf the child for an Israeli passport in her name.
The parents also agreed that a previous Watch List order made on 21 November 2008 be discharged upon delivery of this judgment.
The competing applications
Non-periodic child support under final consent orders
The mother seeks that the father pay arrears of $99,763 (in fact $99,216) outstanding pursuant to Order 16 of the final orders made 21 November 2008 (“the 2008 final consent orders”). These are comprised of half of all tuition fees and charges for the child’s attendance at L School together with half of all books, school uniforms and ancillary expenses relating to the child’s schooling. Pursuant to rule 20.07 of the Family Law Rules 2004 (Cth) (“the Rules”) the mother also seeks that the father’s motorcycle be seized and sold in order to satisfy part of the debt.
The mother seeks the following orders, as particularised at the conclusion of the hearing:
(a)Pursuant to r 20.07 of the Rules, it is declared that the amount specified in par. 30 of the Mother’s Trial Affidavit filed 29 March 2016 (“the total amount”) remain due and payable.
(b)Further, the Father pay to the Mother:
(i)pursuant to r. 20.07(b) the total amount within 60 days; or alternatively
(ii)the total amount by way of instalments of $500 per week until the total amount is paid in full
AND FURTHER there be penalty interest applied as fixed by the Family Law Rules on any amount(s) outstanding.
(c)Pursuant to r 20.05 of the Rules the motorcycle in possession of the Father be seized and sold forthwith to satisfy in part the total payment.
(d)The Father keep the mother advised at all times of change of employment including particulars of their precise name and address.
The father did not ultimately dispute the quantum of the arrears but disputes that he has the capacity to pay them.
Paragraph 16 of his Amended Response to Initiating Application seeks:
That the paragraph 16 of the Orders of 21 November 2008 and the respondent’s obligations thereto, including any arrears or outstanding amounts, be hereby discharged.
The father proposes that the mother’s application to enforce the arrears for the payment of non-periodic child support be dismissed because of the failure of the mother to bring an application earlier and his lack of capacity to pay.
Although the father’s material suggested that he sought to discharge his obligations under the 2008 final consent orders, his case was largely directed to the discharge of the arrears.
Spend time arrangements for the holidays of Jewish New Year and Passover
The 2008 final consent orders provided that the child’s time spent with the father be suspended during certain Jewish holidays, as set out in a schedule. This Schedule included Jewish New Year, referring to “Rosh Hashanah, erev and the first night and first and second days” and Passover, referring to “Pesach erev until 5pm on the second day”.
These arrangements have continued since November 2008.
A number of occasions of religious significance were at issue at the commencement of the trial, including the spend time arrangements for the child on Friday nights. These were ultimately resolved by the parties but there was no agreement as to where the child was to spend time on the first two days of Passover and the entirety of the Jewish New Year. In his Amended Response to Initiating Application filed 1 March 2016 (at paragraph 4.d.), the father sought that the child spend time with him for “the first half of the Jewish holidays Erev Yom Hashanah and Erev Passover from 5pm until 5pm the following day, and to alternate each year thereafter.” During the course of the hearing this was clarified as the first two days of those holidays each alternate year.
The mother proposes that the child continue to spend the full duration of the Jewish New Year and Passover with her, consistent with the 2008 final consent orders and with what has occurred in previous years. The mother relies on the religious significance of these occasions for the child.
The father proposes that the child spend time with him for these holidays because this has not occurred in the past and this would be consistent with principles of significant and substantial time under the Family Law Act 1975 (Cth) (“the Family Law Act”), and because he considers those times culturally significant and wishes to share those times with the child. He also maintains that the mother has tried to minimise his relationship with the child and has been unreasonable in her exercise of sole parental responsibility.
Change of name for the child
The mother proposed that the child’s surname on her birth certificate be changed from Stein (the father’s surname) to Jacobova-Stein (a hyphenated name combining the surnames of both parents) and the father opposed this application.
Travel for the child to non-Hague Convention countries
The father seeks that he be permitted to travel for holidays with the child in the future to any country, including countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is opposed by the mother who seeks an injunction to restrain the father from travelling with the child to countries that are not signatories (“non-Hague Convention countries”). There was ultimately no dispute that either parent should be permitted to travel with the child to Hague Convention countries.
Background and procedural history
The parties were married in 2000, separated in or about November 2007 and divorced on 4 March 2008.
The father has re-partnered and was remarried in 2012 to Ms Z, and there are no children of this marriage.
The parties entered into final property and parenting orders by consent on 21 November 2008 (“the 2008 final consent orders”). Those orders provided for the mother to have sole parental responsibility for the child and for the child to live with the mother and spend time with the father each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday and several hours of each Tuesday evening. Other orders were made for special occasions including Jewish holidays. The child’s time with the father was suspended for Passover and Jewish New Year. The father was restrained from removing the child from the Commonwealth and the child’s name was placed on the Watch List.
Order 16 of the 2008 final consent orders provided:
That pursuant to s 123 of the Child Support (Assessment) Act the husband pay half of all tuition fees and charges of the school for the child incurred by her attendance at [L School] (or any other agreed private school), as and when they fall due, together with half of all books, school uniforms and any ancillary expenses relating to the child’s schooling upon production by the wife of the invoices for same.
There is a history of the father bringing contravention applications against the mother for failing to facilitate the child spending time with him. The father’s most recent contravention application was withdrawn in May 2015 and he was ordered to pay costs to the mother.
On 25 March 2015 the mother filed an Initiating Application in this Court seeking interim and final orders to suspend the father’s time with the child, have the parents jointly obtain a passport for the child, discharge the Watch List order and change the child’s surname from Stein to Jacobova-Stein. This occurred in the context of the child not spending time with the father from February 2015 following her discussions with her school counsellor about her emotional state.
On 12 May 2015 the father filed a Response seeking to vary the final parenting orders to provide for equal shared parental responsibility and week about residence for the child.
On the following day the mother filed an Amended Initiating Application seeking enforcement of child support arrears as per Order 16 of the 2008 final consent orders.
Interim orders were made on 23 June 2015 varying the 2008 final consent orders so that the child was to spend time with the father in an alternating four-week cycle each alternate week from 10 am Saturday to the commencement of school/9.00 am Monday if no school, and each other alternate week from after school/3.30 pm Friday if no school to the commencement of school/9.00 am Monday if no school.
Evidence
On 2 February 2016, Cronin J made an order to the effect that pursuant to s 69ZT(3) of the Act all evidence in the trial be subject to the Evidence Act 1995 (Cth).
The parties proceeded upon the basis that the mother was the applicant. The applicant mother relies upon her trial affidavit and financial statement, both filed 29 March 2016, and exhibits tendered during the trial, in support of her application. The mother was cross-examined in the trial.
The respondent father relies upon his financial statement filed 1 March 2016 and his affidavits filed 1 March and 5 April 2016. The father was cross-examined in the trial. He also relies upon an affidavit of Ms Z, filed 14 April 2016. She was not cross-examined in the trial and her affidavit related to parenting rather than financial matters. She was not cross-examined because it was accepted by the mother that she was unavailable during the trial for medical reasons.
The parents, the child and Ms Z were interviewed by the family consultant, Ms B, in June 2015. Her report dated 19 June 2015 is also relevant to the background of the dispute and the context of the mother’s earlier application to suspend the child’s time with the father. Ms B also conducted a telephone interview with the child’s psychologist, Ms K.
An affidavit from the family consultant incorporating her report was filed on behalf of the father on 25 April 2016 and referred to in submissions. The evidence of the family consultant was not challenged because neither party sought to cross-examine her.
Standard of proof
When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[1]
[1] Evidence Act 1995 (Cth) s 140.
Evidence of the Family Consultant
Ms B’s report was prepared on the basis of the interviews conducted in June 2015. The issues between the parties at that time principally related to the spend time arrangements for the child. As noted above, at that time the mother sought that the child’s time with the father be suspended. The report writer refers to the fact that the mother “stopped [the child’s] time with her father in late February 2015 following disclosures by [the child] to her counsellor about her emotional state.” The father had sought that the living arrangements be altered to a week about basis. The report writer was aware of financial and child support issues between the parties.
The dispute about the suspension of the spend time arrangements for the child during two special religious and cultural Jewish events, being Passover and the Jewish New Year, was not specifically addressed by the family consultant.
Ms B’s report described two parents who had great difficulty in communicating effectively and without conflict and who both failed to recognise their own behaviour as contributing to the child’s distress in the midst of the ongoing conflict; they each accused the other of similar conduct and professed a desire to avoid putting the child in the middle of the conflict.
Ms B described the child as “aware and articulate and able to discuss her circumstances”. She characterised the child as having a “high degree of insecurity and anxiety in relating to her parents and to the world”, as being “always on her guard” and as “always blam[ing] herself for creating the conflict”, with an “enormous” capacity for “self-admonition and self-criticism”. She noted that the child was dealing with significant stress as a result of the conflict between the parents and that she had felt that she was in the middle of their conflict since the age of three. She noted that because the child tended to perceive the conflict between the parents as being the child’s “fault”, the conflict resulted in feelings of guilt and self-loathing in the child and a subsequent feeling of “wanting to die” as she believed that if she ceased to exist, the conflict between the parents would end. She also expressed a concerning belief that the parents “don’t need [her] here anymore”. The child described avoiding the parents’ fighting in ways that included fantasising about being dead and in a graveyard. Significantly, Ms B noted that the child had a self-acknowledged tendency to tell each parent what she believed they wanted to hear. She noted that the child recognised her own tendency to be a “softy”, her difficulties in expressing her own views and her fear of giving wrong answers or not knowing what the right answers were.
Ms B observed that the child’s self-perception was negative and her self-confidence was “extremely low”, using derogatory descriptions of herself and tending to be very sensitive to experiences at school involving friends, changes in friendship alliances and bullying. She was of the opinion that the child appeared to be more aggrieved than children with higher self-esteem and more stable and secure attachment.
The child had worked with the school psychologist to reduce the immediate sensations of anxiety, and Ms B noted that the descriptions of anxiety and behaviours the child described were consistent with a generalised anxiety disorder, an observation with which the child’s psychologist reportedly agreed.
Ms B noted the child’s high sensitivity to the mother’s needs and to the mother’s reactions. Ms B stated that the child’s tendency to “remain hypervigilant” and need “to reassure or meet her mother’s needs” was further evidence of her anxiety. The report writer noted that when attempting to explain certain matters to the mother that were bothering the child, the child “was tentative”, “needed assistance” and “was understated in making these comments to her mother, putting them gently to her and leaving out some of the more significant issues”. She described the child as “providing a nurturing, caring role and looking after her mother during these discussions”. Ms B observed, “It was evident that [the child’s] need to please, care [for] and support her mother are overwhelmingly important to her and confirm that, firstly, she is primarily attached to her mother and that the attachment is insecure and anxious”. Ms B stated that “it was clear that both mother and daughter have a very strong close relationship”.
Ms B reported that the child had said her father frightens her, adding “although I love him”. She had similarly expressed that she was “scared” of her mother’s reactions, and it was Ms B’s opinion that the child used the term to mean that she was worried about hurting her parents’ feelings; she also noted that the father has “a strong personality” which could possibly “appear to be intimidating to a child”.
She noted that the child’s psychologist informed that the child reported being frightened by the father, worried about his telephone calls and “allegedly being ‘interrogated’ by him”. The psychologist informed Ms B that the child told her that she saw the father because she felt sorry for him. Ms B noted upon observing the child with the father and his wife that the child’s relationship with the father was “clearly warm and loving” and that she “also demonstrated a good relationship” with the father’s wife.
The father reportedly expressed to Ms B that he wanted to take the child overseas on holiday and/or to visit his family in Israel.
Ms B noted that during her interview with the father and the father’s wife, they indicated that the child had once told them she had previously feared that the father would permanently take her to Israel. The child’s psychologist informed Ms B that the child had mentioned her fear of being taken to Disneyland [by the father] and mentioned that the father had “allegedly tried to get her a passport”. Ms B believed that there appeared to be no intention on the father’s part to abscond overseas with the child and not return her, that the child had enjoyed holidays with the father and that she would be likely to enjoy future holidays, including extended overseas holidays. Ms B noted that “a solid period of time with one parent is to [the child’s] benefit and places her away from interactions between the parents”. She contended that there was “little or no evidence to support a restraint or restriction on [the child] spending overseas holiday time with her father”.
Ms B believed that “the child reported adverse stories about her father to please her mother … to join with her and to demonstrate her loyalty”, and noted that the father reported that the child had similarly complained about the mother when she was with the father. Ms B was of the opinion that the suspension of the child’s time with the father had alleviated the intensity of the impact of the conflict on the child as it had temporarily removed the problem of divided loyalties for the child.
Ms B noted the father’s view in relation to the name change application – he reported to her that the decision should be made in accordance with the child’s wishes but he believed the child was not yet sufficiently mature to express her own independent wishes. He believed she should make a decision on her own behalf in the future.
Counsel for the mother noted that the mother took issue with some of the conclusions drawn and statements made by the family consultant, but conceded that the report had shed light on certain issues.
The family consultant was not cross-examined and her unchallenged evidence was admitted.
ISSUES
Non-periodic child support
Evidence of the mother
The mother deposed in her affidavit material that the father has made no contributions to the costs of the child’s education at L School notwithstanding the 2008 final consent orders. She deposed that on 8 September 2014, she received a letter from the business manager of the school setting out the school fees incurred since the child commenced there in 2007, an amount totalling $187,342. The mother deposed that she had made all payments to the school to date, which included the ancillary expenses, save for an amount of $15,771 owing at the time of swearing the affidavit.
The mother provided a table of total school fees incurred and a further table of total ancillary expenses incurred in her affidavit which is summarised in the following table. The figures in the mother’s table were incorrect in the total and the figures are corrected as follows:
School year
Year
School fees incurred
Ancillary expenses incurred
Total incurred
Kinder
2007
$9,704
-
$9,704
Kinder
2008
$12,120
-
$12,120
Prep
2009
$13,878
$791
$14,669
Grade 1
2010
$14,848
$992
$15,840
Grade 2
2011
$16,290
$2,752.78
$19,042.78
Grade 3
2012
$18,594
$787.15
$19,381.15
Grade 4
2013
$21,000
$1,365.49
$22,365.49
Grade 5
2014
$24,032
$979.89
$25,011.89
Grade 6
2015
$26,736
$2,778
$29,514
Grade 7
2016
$29,100
$1,684.59
$30,784.59
Total
$187,342
Correct figure is $186,302$12,130.90
$199,472.90
Correct figure is $198,432.90
The mother deposed that there had been occasions in the past where the father had failed to comply with his obligations to pay periodic child support, resulting in the accrual of significant arrears. She deposed that she received two lump sums by way of arrears – in 2013 she received $19,669.21 and in 2014 she received $7,269.41. She stated that she believed the amounts were paid in order to allow the father to travel overseas, as the Child Support Agency had caused a Departure Prohibition Order to be placed upon the father. The mother deposed that the father had given no explanation for being unable to meet the payments as required or for his failure to make payments until they were secured by way of a Departure Prohibition Order.
The mother deposed that the father has not filed his taxation returns. She deposed that she did not know his income, as the Child Support Agency has “continually advised” her that the father has failed to file any taxation returns. She deposed that she had previously attempted to compel the father to complete taxation returns via applications to this Court and has contacted the Child Support branch of the Department of Human Services for assistance.
The mother deposed that in about April 2015, she received a Child Support Assessment stating the father’s income as $120,569; then, from 21 April 2015 to 4 May 2016, the taxable income was reassessed as $0. His monthly rate decreased as per the assessment from $1,203.33 per month to $33.25 per month. A copy of the relevant Administrative Assessment dated 4 May 2015 was annexed to her affidavit.
The mother deposed that following an order made by Johns J on 6 May 2015 for the father to pay $1,650 in costs for a withdrawn contravention application, the father refused to pay those costs. The mother deposed that she had to issue an enforcement warrant for the seizure and sale of the father’s motorcycle and that the father ultimately did not pay the amount ordered until the sheriff proposed to seize the motorcycle.
The mother deposed that the father had failed to comply with orders for discovery made by Registrar Moser on 15 May 2015. The mother deposed that because the father had not provided proper discovery she was hindered in investigating his financial circumstances.
The mother deposed that the father’s irregular and insufficient contributions towards the support of the child had caused her significant financial and personal stress. She deposed that she worked full time as an administrator in the maternal grandfather’s business, earning approximately $24,500 per annum, and that she had an arrangement with the maternal grandfather for him to pay all daily living expenses for her and the child in exchange for a reduced salary. She deposed that she had to continue to live with her parents and was significantly financially reliant upon them, as she expended almost her entire income on the child’s education and living expenses. In cross-examination she was not prepared to reveal any further details of the financial arrangement she had with the maternal grandfather.
The mother deposed that to her knowledge, the father owns a car, a vehicle used for his business and a motorcycle, and that she was aware that the father had recently travelled overseas for a three week holiday. She was therefore dubious that he lacked the capacity to pay for the support of the child. The mother also deposed that the father had sponsored his wife Ms Z’s immigration, which she asserted would have required the father to establish his income and earning capacity. The mother sought that the father produce the sponsorship application. The mother also deposed that the father’s residence in Suburb T was advertised as a brand new luxurious two bedroom apartment in a stunning park side location and sought that he produce his lease.
The mother deposed that in the past several years, the father has travelled overseas to Israel and Asia, and interstate to Queensland, and noted that he had previously made application in this Court to take the child overseas for a two week period in March 2016. The mother noted that he did not explain how he could afford the travel expenses.
The mother deposed in her financial statement that she has an estimated average weekly income of $691 comprised of a weekly salary of $390 and Centrelink benefits; she deposed to receiving no weekly child support payments. She deposed to a total weekly expenditure of $1,202, which included, among other things, education expenses of $550 per week. She deposed that she owned property of $1,013, being household contents of $1,000 and funds in her bank account of $13. She deposed that she also had a life insurance policy of unknown value. She deposed that the total gross value of her superannuation was $129,997. She deposed to having no financial resources and total liabilities of $7,885.50. She did not provide information about the total income earned by either of her parents, with whom she and the child reside. She described the total amount of the expenses paid by the maternal grandfather on her behalf and on behalf of the child as “N/K” (not known).
In her affidavit, the mother deposed that the company F Business where the father claims that he worked for about six months in or about 2011 was owned by the father. The father denies this and maintains that F Business is a very large national company.
In cross-examination the mother said that she had borrowed funds from the maternal grandfather to pay for this litigation, and that she intended to apply the arrears to repay her father and to fund the child’s schooling.
The mother was reluctant to answer questions about her parents’ finances. By way of explanation for her failure to complete details of the income of the maternal grandparents, she claimed that she was not comfortable asking and thought that they should not be involved in these matters. When it was put to the mother that her father was quite wealthy, she denied this.
The mother denied that she had ever received a salary of $85,000 per annum or that she had received such a salary at the date of separation. She claimed that she could not remember her precise income at the date of separation. The mother ultimately conceded that she had taken a salary reduction because she had moved to live with the maternal grandparents.
The mother explained that she did not pay rent to the maternal grandparents as part of the financial agreement she had with them. The mother maintained that she paid the school fees from her current salary.
The mother acknowledged that following the 2008 final consent orders, the maternal grandfather brought proceedings against the father for certain debts. The mother said she was not involved in the proceedings and could not comment on the cause of the father’s bankruptcy. Counsel for the father put to the mother the periods of the father’s unemployment set out in his affidavit and the mother agreed that she was not in a position to dispute them.
Evidence of the father
The father deposed that he was unable to meet the obligation imposed by the 2008 final consent orders for non-periodic child maintenance. He deposed that during the marriage, both parties were employed in the maternal grandfather’s professional practice. He deposed that they each received a salary of approximately $85,000 per annum. He deposed that in or about June 2007 he was made business manager and owner of the practice, but that upon separation the wife and the maternal grandfather unilaterally removed him from the business by changing the locks and restricting his access to the business premises, preventing him from retaining any items including any accounts. He deposed that following his ousting from the business upon separation, he was unemployed for a period of six to seven months and was unsuccessful in his new business venture. He deposed that during this time, he was assessed by the Child Support Agency as being obliged to pay child support in the amount of $1,500 per month because his taxable income for the year was approximately $85,000. He deposed that he was unable to meet those payments and was forced to rely on credit cards for living expenses and became significantly indebted.
He deposed that the maternal grandfather brought proceedings solely against him for repayment of $150,000 that the parties had jointly borrowed from him in their capacity as business owners. He deposed that in these circumstances, he had no choice but to declare bankruptcy in 2008 and that his bankruptcy was discharged in November 2011. He deposed that during this period he had remained largely unemployed with the exception of “odd jobs here and there”, and was unable to afford to make any assessed or other payments toward child support.
He deposed that in or about 2010, he worked as a transport driver for a company called “F Business” for about three to six months earning approximately $690 per week. He deposed that when this employment ceased he began “receiving Centrelink benefits” and “a large portion was commissioned by child support in payment of arrears I owed.” The father deposed that he did not assist in paying for the child’s schooling and associated expenses at this time because he lacked the capacity to do so, although he attempted to assist where he could, and would purchase “new clothes and things” for the child when she was in his care.
The father deposed that his bankruptcy was discharged in 2011 and that he remained unemployed until the period in or about September 2013, when he started his business, Y Pty Ltd, with the financial assistance of his wife, including her purchase of a motorbike to assist with the operation of the business. He deposed that he eventually began earning an income of approximately $500 per week, or approximately $25,000 per annum. He deposed that without the financial assistance of his wife and her family, he would have been unable to pursue the business endeavour or continue to support himself and his wife. He deposed that due to his current financial circumstances, he lacked the capacity to contribute financially to the child’s schooling.
The father deposed that he did not own any property and had borrowed significant amounts from his father-in-law over the years. He deposed that in or about 2012 or 2013, he borrowed $30,000 from his father-in-law for payment of child support arrears (the mother in her affidavit deposes to having received $26,000 and claims that the father used the balance for holiday purposes) and in or about 2014, he borrowed a further $57,000 from his father-in-law as a personal loan to cover expenses including the purchase of a new work vehicle, payment of day to day living expenses for himself and his wife including expenses for a holiday, and the payment of some of his legal fees. He further deposed that his father-in-law was funding his trial fees of approximately $20,000. The father deposed that he intended to pay his father-in-law by way of $150 weekly payments.
The father deposed that he “is not in arrears with the child support agency” due to the payment of arrears of $25,000-$30,000 in or about 2013/2013 which he paid by obtaining a personal loan from his father-in-law. He deposed to ultimately repaying a further $8,000 in arrears to the child support agency “with the assistance of my wife and her father” when the Child Support Agency “were impeding my departure” when he had to go to overseas to visit his mother-in-law who was ill.
The father deposed in his financial statement to an estimated average weekly income of $500 per week and a total estimated personal weekly expenditure of $786.25. He deposed to an unknown value of his total personal superannuation, described the total value of the property owned by him as “nominal” and deposed to having no financial resources. He deposed to having liabilities totalling $87,000, consisting entirely of debts owed to his father-in-law. He deposed to paying $9 per week in child support for the child. He deposed to owning a Nissan car with an estimated value of $2,000 and a motorcycle with an estimated value of $5,000. He deposed to owning household contents with an estimated value of $2,000 and described the value of the business Y Pty Ltd as “nominal”.
The father stated that he had consented to the cost order made against him on 8 April 2015 and denied refusing to pay the costs. The father stated that the mother did not seek the relevant sum from him and did not notify him of the issuing of the enforcement warrant authorising seizure and sale of his motorcycle. He claimed that had he known this, he would have paid the amount owed.
The father denied failing to comply with orders for discovery.
The father took issue with the mother’s claim that she was earning $25,000 per annum and claimed that she must either be misrepresenting her weekly expenses or her annual income. The father asserted that it was the maternal grandfather who paid the school fees. He also deposed that he was advised that the child was or had been on a scholarship, significantly reducing the school fees. There was no supporting evidence adduced in relation to these claims.
The father explained the issue of the variation in his taxable income as having been the result of an error, stating that the Child Support Agency had told him they had made an error in relation to his income when, in or about 2015, he lodged his tax returns.
The father deposed that his work vehicle is rented rather than owned. The father deposed that his wife purchased his motorcycle for him and that she and her family had financed his overseas travel. He conceded in cross-examination that the motorcycle is registered in his name. He deposed that he had not travelled to Vietnam, had travelled to Israel when his mother-in-law was sick and subsequently passed away, and travelled to Southeast Asia with his wife for their honeymoon, for which his wife paid.
In his financial statement, he deposed to paying $275 per week in rent. He deposed that his weekly rent in his current residence is $550 per week, but that, as there is a study in the residence which he uses as his home office, half of the weekly rent is paid by the business rather than by him personally.
The father conceded in cross-examination that he had signed an enrolment application in 2007 and that he had no complaints about the child attending L School.
In cross-examination the father conceded that he had not recorded in his financial statement that he was in possession of one credit card and two debit cards. He conceded that the debit cards were in his name and claimed that he was the secondary cardholder for the credit card.
In cross-examination the father conceded that he had received correspondence from the solicitors for the mother seeking discovery in relation to his current rental agreement, personal income tax returns and returns for the company ending in the June 2015 financial year. He conceded that he had not provided the information but stated that his taxation documents for the financial year ending 30 June 2015 had not been completed because his accountant had told him that it was unnecessary to complete the material until the end of June.
The father conceded that he and his wife are both directors and shareholders of Y Pty Ltd and that his wife receives $500 per week for about two hours work each night. When asked about the work performed by his wife, the father said that “she fixes my [schedule]” at night. His evidence was that his working hours vary but that he usually works about 30 hours per week. He agreed that his wife does not have a truck driving licence and that she does not undertake any other work for the company. He maintained that he earns $1,000 per week which he shares equally with his wife so that his income is $500 per week. He stated that $200 per week is paid for rent in explanation of the amount of $800 per week being paid into his wife’s account from O Company.
He conceded that he splits his income with his wife and that if he didn’t do so his income would be $50,000 per annum.
The father gave evidence that he did not have a contract with O Company and that he did not know how the expenses for petrol, tyres or servicing of the vehicle were paid. His evidence was that he did not know about any subsidies paid by O Company and that he did not know whether he had any superannuation. When asked who pays for his superannuation, his response was “I’m supposed to”.
He acknowledged that in 2015 he had received deposits from O Company in the sum of $97,762 into the Y Pty Ltd account. However, he claimed that there are business expenses to be paid from that sum and that he gives all of the paperwork to his accountant.
The father gave evidence that he requested the Tax Office to delay the preparation of his BAS statements because they had not been completed and that he made this request in December 2015 when the proceedings were on foot. He denied that this was to avoid providing information to the mother for the purposes of the proceedings and claimed that the financial information had not changed since the previous year.
In response to the tender of Exhibit E by the mother (a bundle of photographs taken of the father on holiday and posted on Facebook) the father conceded in cross-examination that he had travelled on a number of occasions with his wife and at times with the child, including the following occasions:
·Southeast Asia in 2015
·Israel via Southeast Asia in 2014 when his mother-in-law was dying
·two trips to the Yarra Valley
·a holiday on a houseboat in 2015
·a holiday in north west Victoria
·a holiday in Sydney staying at a five star hotel
·a holiday in Queensland two or three years ago.
In cross-examination the father conceded that he had not included in his financial statement (Part F) that there were any expenses paid for his benefit. In cross-examination he was taken to the business transaction account for Y Pty Ltd. He acknowledged that there were a series of transactions whereby money was debited from the company account for the payment of his wife’s credit card. He conceded that the credit card was then used for the payment of personal expenses unrelated to the business. He denied claiming debits for his wife’s credit card as business expenses.
Contradicting his own evidence during cross-examination that Ms Z handled the accounts, the father conceded that he handled the accounts for the business when the bank statements of the Business Transaction Account for Y Pty Ltd were produced.
When cross-examined about numerous personal payments including an amount of $4,000 which had been debited from the business account and recorded as “travel”, he said he could not remember the payments and claimed that they were moved to another savings account so that they could be saved. He claimed that the $4,000 which was recorded as “travel” was in fact a payment from C Company which he received when the company known as “Q” went bankrupt. In answer to the proposition that “travel” has nothing to do with the business he responded “it’s just moved to another account and when I need it I move it back”. The father conceded that in October 2015 he had taken a bonus from the business transaction account in the amount of $2,075 and referred to this as “leftover money in the business” which his accountant had told him that he could take as a bonus.
In cross-examination the father could not remember a number of debit payments from the business transaction account, including an amount of $1,074 from 5 June 2015.
In earlier evidence the father maintained that he had not made any payments to his lawyers for legal fees. In response to questions about a debit of $860 from the transaction account to the father’s solicitors on 13 May 2015, he stated that he could not remember.
In response to the proposition that he had accessed in excess of $20,000 gross for living expenses from the business account during 2015, the father stated that he would have to check with his accountant because he had not completed his 2015 tax. He maintained throughout the course of cross-examination that he had insufficient time to discuss his financial matters with his accountant and accordingly was unable to answer many questions.
The father’s explanation for failing to comply with his obligations to pay the school fees and expenses pursuant to the consent order was that he did not have the capacity to pay when he was bankrupted, and that later, when he did have the capacity to pay because his financial circumstances had improved, the mother had failed to provide him with receipts for the payment of the expenses. Counsel for the mother tendered Exhibit F which the father acknowledged as a bundle of receipts which had been sent to him by the mother. However he maintained that in more recent times the mother had not provided receipts when requested.
When cross-examined about whether he would comply with any instalment order to pay the arrears under the 2008 final consent orders, the father replied “whatever I can afford I can pay”. He also maintained that in the last five years he had been unemployed and bankrupt and could not afford to pay.
In response to a bank account record indicating that the father had spent $175.20 at Nike, the father explained that he buys himself new runners every two months to be used in the course of his work, which he said involved about six kilometres of walking each day.
When it was proposed that the father’s motorcycle be sold and the proceeds applied towards payment of the arrears, the father stated that he needed the motorcycle for work as he intended to use it for work purposes in future. He stated that he intended to take this action because he had “back troubles” and he proposed to use the motorcycle and hire a subcontractor to undertake work using the vehicle. The father claimed that he would have a lower income in future due to a need to address these issues by reducing his work hours and hiring a driver. The father said he had been suffering from his back condition since last year, but acknowledged that he had adduced no evidence in support of this claim.
Submissions for the father about the non-periodic child support
Counsel for the father submitted that the period of bankruptcy was not the subject of challenge in cross-examination of the father, although he was cross-examined to the effect that there were other debts owing at the time of bankruptcy apart from the judgment debt owed to the maternal grandfather. Counsel conceded that the father’s evidence that he had unsuccessfully applied for a number of jobs during the period of 2008 to 2011 was challenged, and that he had also been challenged in relation to his assertion that he largely did not work following the bankruptcy period. However he submitted that the father’s evidence about working for F Business and subsequent receipt of Centrelink benefits as outlined in his affidavit were not challenged. Counsel urged the Court to consider these periods on two bases.
Firstly, counsel submitted that during the period of the father’s bankruptcy, the father’s financial affairs were a “mess”, and he lacked the capacity to comply with the order. Counsel noted that there was no evidence before the Court that the father was working during that time, nor that he had the income to pay the non-periodic child support. He submitted that there was no evidence that the father had the capacity to pay.
Counsel for the father conceded that there was evidence that the father had only paid periodic child support payments when it was clear that if he did not do so, he would be prevented from travelling overseas.
Counsel for the father also acknowledged that there was evidence that, in the assessment of periodic child support, the father had the advantage of the income splitting arrangement with his wife, Ms Z. However, counsel submitted that a global view should be taken and that the mother’s advantages received from the arrangement she had struck with the maternal grandparents to work as a practice manager for a strikingly low salary of $25,000 per annum and receive room and board and assistance with the child’s schooling expenses should be considered. Counsel submitted that this affected the assessment of the mother’s periodic child support entitlements.
Counsel for the father was critical of the mother’s refusal to answer certain questions about her financial arrangements with the maternal grandfather, and suggested that it was extraordinary that she could not recall the salary she had previously received as a practice manager given that she had undertaken a salary sacrifice and chosen to receive substantially less than that figure in exchange for other forms of financial assistance from her family. Counsel described the mother in cross-examination as unhelpful and submitted that an inference should be drawn that if the mother had nothing to hide, she should have been far more frank giving evidence.
Counsel submitted that, regarding the enforcement of the arrears, the Court has a broad discretion. Counsel noted that there has been authority indicating that when someone “sleeps on their rights” for many years, and unpaid maintenance liability accrues to an unreasonable level, the failure to bring the application earlier is a relevant factor in assessing how much should now be paid. Counsel drew an analogy with arrears of spousal maintenance suggesting that a rule applied in the past where arrears were over 12 months that the orders were not necessarily enforced. Counsel submitted that this is a matter for discretion and what is fair.
Submissions for the mother about the enforcement of the arrears
Concerning the unpaid arrears, counsel for the mother cited comments made by Blackstone and quoted in Mee & Ferguson (1986) FLC 91-716 at 75,193:
The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation... laid on them not only by nature itself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might otherwise see them perish. By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, so far as in them lies, that the life that they have bestowed shall be supported and preserved.
Counsel for the mother emphasised that this was a duty upon the parents, not the maternal grandparents or the father’s wife, and that regardless of the mother’s reticence to discuss the maternal grandfather’s income, this remained the case.
Counsel for the mother noted that the quantum of arrears sought by the mother was not disputed.
Counsel submitted that the father could not “cherry pick” amounts to be deducted on the basis that he was bankrupt. Counsel emphasised that the father consented to the 2008 final orders, consented to the child’s enrolment at that school, and joined with the mother in the proposal for the child’s schooling. Alluding to the father’s comments in cross-examination, counsel characterised the father’s attitude as “I will pay what I can”.
Counsel for the mother submitted that it was disingenuous for the father to attempt to apportion blame for his bankruptcy upon the maternal grandfather given that there were other causes for the bankruptcy, and noted that the father adduced no evidence from the trustee in bankruptcy and did not provide a schedule of his creditors.
Counsel was critical of the father for his alleged failure to make full and frank disclosure, noting that the father failed to comply with the Court’s order to produce certain documents even during the course of the trial, and repeatedly stated in the witness box that he needed to speak to his accountant to clarify certain matters or blamed his accountant for deficiencies in his material.
Counsel for the mother contended that the father had opportunities to provide disclosure and failed to do so, criticising his failure to provide BAS statements, proofs of payments (with the exception of O Company receipts, the substance of which were already duplicated in his bank statements), his full history of signed leases and updated credit card statements. Counsel was also critical of the father’s failure to complete his income tax return for the year ending June 2015 despite the father’s knowledge of the proceedings, and submitted that this failure was due to an attempt to avoid any reassessment of child support and to avoid up-to-date information being used in these proceedings.
Counsel for the mother was critical of the father’s suggestion that his business was in decline despite $95,000 being deposited into his account last year, and despite the figures in the father’s bank account appearing to indicate that so far this year, the business was as profitable as, or more profitable than, last year. Counsel also criticised the lack of detail in the father’s financial statement, describing it as a “flawed” and “false” document, noting that it did not include the father’s alleged $87,000 debt to his father-in-law and instead indicated that he owed his father-in-law $50.
Counsel also referred to the discrepancies in the father’s income as deposed in his financial statement when compared with the amounts debited from the Y Pty Ltd accounts. Counsel highlighted that the father had given evidence that he and his wife received $1,000 in total weekly and $500 of this was allocated as income to his wife, but that the exhibited evidence demonstrated an income of $800 per week from the Y Pty Ltd account deposited into an account under his wife’s name; evidently there was an income splitting arrangement in place to reduce tax and child support obligations. Counsel for the mother submitted that the father could not justify the salary he claimed to pay his wife for only two hours’ work each night preparing schedules.
Counsel for the mother noted the father’s admission that he had failed to disclose expenses paid for him as a result of the business, such as O Company paying for the rental of the vehicle used for the business, and was critical of the father’s vague responses in cross-examination. Counsel emphasised the father’s failure to include the Westpac credit card where he was a secondary cardholder in his financial statement, noting that this card had become known to the Court only when counsel asked the father to produce his credit cards in the witness box.
Counsel for the mother referred to the fact that Ms Z was unavailable for cross-examination (albeit that in her affidavit material she had only deposed in relation to parenting matters). Counsel noted the evidence of credits into her account of $84,387, as well as wages of $19,170, during the period between 24 March 2015 and 23 September 2015 (Exhibit K). Counsel acknowledged that the purpose of the payments could not be determined on the evidence, and did not suggest that Ms Z had any child support obligation, but submitted that these payments indicated the existence of financial resources sufficient to make ends meet in the same way that the maternal grandfather assisted the mother. Counsel contrasted Ms Z’s willingness to assist the father with his $59,000 legal fees with her apparent unwillingness to assist with the non-periodic child support obligation. He emphasised that the maternal grandfather had no obligation to support the child.
Counsel for the mother submitted that it was apparent from the financial records in evidence that Ms Z could not solely finance the holidays and that it was clear on the evidence of the credit cards that the money from Y Pty Ltd was being used to finance those holidays and that Y Pty Ltd was really “the father by another name”.
Counsel for the mother emphasised the Y Pty Ltd financial statements for 2014 (Exhibit I), noting the failure to list accounting fees and the father’s statement that those fees are to be included in the next financial year, despite the fact that the taxation return for the next financial year has yet to be prepared. Counsel also highlighted a reference to “pool reduction” in the 2014 document in the amount of $2,000, and a loan to Ms Z in the 2014 document for $10,800. Counsel noted that when the father was asked about the latter amount, which appeared to have been paid out in the next year, the father had no explanation and said he would have to ask his accountant.
Counsel submitted that the father had avoided full disclosure in order to avoid the Court making adverse findings; counsel referred to the authorities of Weir & Weir (1993) FLC 92-338, Black & Kellner (1992) FLC 92-287 and Chang & Su (2002) FLC 93-117. Counsel submitted that if in doubt, the Court should consider the father’s credit. Counsel suggested that in analysing the evidence, the Court is not prevented from taking a robust view and drawing adverse inferences against the father, notwithstanding the authorities such as Weir referred to in relation to property cases where there has been a lack of full and frank disclosure and the consequent effect on the ability of a judge to form a robust view in those cases.
Counsel submitted that the father’s regular purchases of $175 Nike runners while paying a minimal amount of child support was illustrative of the father’s attitude toward money, and that while the father’s love for the child was evident, this did not translate to complying with his financial obligations. Counsel noted the evidence of the father spending time with the child on holidays including on a house boat, in a five star hotel and taking a ride in a hot air balloon. Counsel suggested there was “ample evidence” before the Court indicating the father had capacity to pay the arrears.
Counsel noted the father’s failure to bring an application to vary the 2008 final consent order. Counsel submitted that this case was not analogous to spousal maintenance cases such as Spry & Rouet (1977) 29 FLR 425. Counsel for the mother submitted that while enforcement is ultimately a matter for the discretion of the Court, the father should be ordered to pay the full amount outstanding, given that the school is one that both parents expected the child to attend and to continue to attend.
In summary, counsel for the mother submitted that in 2015 there appeared to be company earnings of $95,762 by way of gross amounts coming into the bank account, which have been calculated and not disputed, and the father really earned more when O Company’s rental payments for the vehicle were taken into account. Counsel noted that the father had not paid tax for the year ending June 2015 and so it was not known whether he would receive any tax credit. Counsel juxtaposed that evidence with evidence of the father’s lifestyle and the fact of his minimal periodic child support payments. Counsel submitted that given the father clearly had financial resources, agreed to the obligation and never sought to vary the obligation, the 2008 final consent order should not be discharged.
Counsel also submitted that the father’s motorcycle should be seized and sold under the power to sell property under Rule 20.05(a). Counsel noted that the father’s late evidence in cross-examination that he had longstanding difficulties with his back and intended to use the motorcycle for work purposes in order to avoid problems with his back, was not supported by any other evidence. Counsel suggested that this evidence “reeks of recent invention”. (Counsel for the father noted, in relation to this criticism, that the evidence in relation to the back condition arose only in the course of cross-examination, and it was unreasonable to criticise the father for a failure to file evidence in respect of a matter that he was unaware would be relevant to the proceedings).
Spend time arrangements in issue
There was no dispute that the child had historically spent the Jewish New Year and Passover with the mother in accordance with the 2008 final consent orders.
Although the spend time arrangements for the child on Friday nights were ultimately agreed, the comments made by both parties in their affidavit material give the flavour of their approaches to the issue of where the child should spend time on religious occasions. It is noteworthy that in her affidavit, when discussing the question of where the child should spend Friday nights (which constitute part of the Jewish Sabbath, known as “Shabbat”), the mother deposed that the child “identifies very strongly with her Judaism and loves these Shabbat get togethers” and that “it is the only time of the week that the child spends with her extended family” and the mother sought to balance giving the child both “the benefit of enjoying the Jewish family traditions” and the benefit of spending time with the father.
The father deposed in response that he wished to promote the traditional values alluded to by the mother with the child in conjunction with Ms Z, and that his wife wished to practice Shabbat. He deposed that the mother was unreasonably withholding and restricting him from being involved with the child and these practices. The mother claimed that the father was irreligious and did not celebrate Shabbat, and since 2008 had never sought to spend time with the child on the majority of the Jewish holidays; the father denied these claims.
Evidence of the mother
The mother deposed that the father is not religious and that when the 2008 final consent orders were negotiated, the father had insisted upon spending time with the child on Tu Bishvat, Lag B’Omer and Yom Ha’atzmaut as he stated that these occasions were special to him. However, the mother deposed that the father has not spent any of those occasions with the child, often claiming to be too busy to spend time with her. Annexure CJ-4 to the mother’s trial affidavit was a detailed list recorded by the mother of the occasions between 2009 and 2015 when the father had not spent time with the child in accordance with the 2008 final consent orders.
When it was put to the mother that she has had the benefit of the child spending time with her for the last seven or eight years for Jewish New Year, and that it was appropriate for the child to share the occasion with the father, the mother responded that it was a religious occasion. She emphasised that it was an occasion when the child attended synagogue with the family and enjoyed the practice of her religion and that the child was proud of her religion, as well as enjoying her time with her maternal grandfather during this festival. Regarding Passover, the mother noted that the maternal family comes together for this time, including the maternal uncle who travels from interstate, that the child has a part in the Passover Seder and looks forward to it, and that it is an occasion of familial and religious importance.
Evidence of the father
The father denied the mother’s claim that he had not spent time with the child on Tu Bishvat, Lag B’Omer and Yom Ha’atzmaut.
The father was cross-examined about the time the child had spent with him during past Jewish religious and cultural festivals since separation. The father acknowledged that he did not attend synagogue and that for him these were not religious festivals.
It was put to the father that according to Annexure CJ-4 of the mother’s trial affidavit, he had not celebrated the festival Tu Bishvat with the daughter since the 2008 final consent orders. The father responded that he could not precisely recall but thought that he might have celebrated it with her on one or two occasions. He said the child had not spent time with him on each of the days because he was working. He disputed the assertion that the child had not spent time with him on the festival Lag B’Omer from 2009 to 2014, saying that he recalled picking her up to celebrate on some occasions. It was put to him that he had not spent time with her on Lag B’Omer during the majority of those years, which he disputed.
It was put to the father that he does not practice the Jewish faith; he disputed this and stated rather that he is not “religious”.
The father stated that the festival of Passover was not just religiously significant but also “traditional”. When put to him that he did not have family in the area, he responded essentially that his wife and Israeli friends would participate in celebrating Passover. The father was asked where he celebrated Passover last year, and at first recalled spending it in Southeast Asia but then recalled that he did not celebrate it last year and that was a recollection from a different year.
Evidence of Ms Z, the father’s wife
In her affidavit, the father’s wife, Ms Z, deposed that although she and the father are not strictly religious, they “practice Shabbat on Friday evenings”. She deposed that the couple have family dinner, light the candles according to the correct time of day for Sabbath candle lighting and on occasion invite neighbours to join them for the Friday night meal. She described an instance where she and the child were preparing to light the candles and they searched online for the correct time of the evening to light the candles. She describes herself and her husband as “traditional Jewish/Israeli’s” [sic]. She deposed that she also upholds other religious or cultural occasions including Passover, Purim and Israeli Independence Day (Yom Ha’atzmaut).
Submissions about the spend time arrangements
Counsel for the father submitted that generally it is appropriate for children to spend holidays with the parents in alternate years. He conceded that in this particular case there was a history of the child spending Jewish New Year and Passover with the mother and the maternal family. Counsel for the father acknowledged that the mother raised persuasive points regarding these holidays – the family had arranged matters in this way in years past, the mother and her family are religiously observant, the festivals are meaningful for the family and the child is familiar with this arrangement. Counsel submitted that there is a close and loving relationship between the father and child, that the father has in the past had difficulty spending regular and frequent time with the child due to the mother’s alleged actions, that the child is now twelve years of age, that it is appropriate for the child to spend time in alternate years with each parent for religious events, given that the mother has historically had the exclusive benefit of spending these holidays with the child. Counsel for the father submitted that the father’s case is consistent with s 60B of the Act, with the philosophy of the 2004 legislative changes regarding substantial time, and with the philosophy of the Act that the non-residential parent should have the opportunity for the child to spend not just substantial time with them but various times, including festive occasions.
Counsel for the mother highlighted that the father had not initially pursued orders for the child to spend time with him for Passover and the Jewish New Year and that he had not previously sought that the child spend time with him on these occasions. He submitted that the father had often failed to exercise his entitlement for the child to spend time with him on other Jewish holidays according to the mother’s records, that the father’s first contravention application in 2009 dealt with phone contact with no mention of the Jewish holidays, that the father was not a member of a synagogue and that the father was essentially not a religious person. He argued that in contrast, the mother and her family are religious, and these are religious occasions that the child celebrates with the maternal family.
Counsel for the mother submitted that according to the mother, Passover was one of the most significant festivals in the Jewish calendar, perhaps second only to Yom Kippur (the Jewish Day of Atonement), and that the first two days of Passover are the most important. Counsel submitted that the two festivals in question are very important to the mother and her family and that the child forms valuable memories with the maternal family during these festivals, including participating actively in the Passover proceedings by delivering prayer, whereas the father has no extended family in Melbourne apart from the wife, and has never requested that the child spend Passover with him previously. Counsel submitted that, given that these are only a few days in the year, it was appropriate on balance to favour the mother due to the religious connection to these holidays, which the father lacks. Counsel submitted that the father’s wish for the child to spend time with him during these holidays is not enough to demonstrate that it is in the child’s best interests.
Injunction
Evidence of the father
There was limited evidence from the father about the reasons why he might propose to travel to non-Hague Convention countries.
The father was asked about travel routes to Israel and said he could travel via Thailand or Hong Kong but not via Singapore.
When asked why he would not agree to the restriction on travel to non-Hague Convention countries to provide the mother “peace of mind,” the father responded that the mother had no need to worry, because he has lived in Australia for eighteen years. He maintained that he wanted to be free to travel with the child on any holiday that she might wish to take.
Evidence of the mother
The mother stated that her reason for seeking an order restraining the father from taking the child to non-Hague Convention countries was, in essence, that she did not trust the father and she wanted the security of knowing that the child would only be travelling with him to countries covered by the Convention.
When the mother was asked about the practical effect of such an order, and when it was put to her that the order she sought would have little practical effect if the child was taken out of Australia, the mother stated that she had not been aware of this. She stated that if the order did indeed have little practical effect, she did not see why the order should not be made. After reflecting on this, the mother referred to incidents of child abduction that had been reported in the media. She regarded the order sought as a “safety net”.
The mother asserted that her fear of the father abducting the child was a rational fear, citing times when, she alleged, the father had tried to take the child out of school and crèche without the mother’s consent. When asked whether she believed the father would not stay in Australia after having lived here for 18 years, the mother said she did not know.
Submissions about restriction on travel
Counsel for the mother acknowledged that the 2008 final consent orders placed substantial restrictions on the father travelling with the child, removing the child from the Commonwealth and ordered that the child’s name be placed on the airport watch list. He suggested that the mother had softened her position considerably now by consenting to the father travelling overseas with the child. Counsel for the mother questioned why the father was unwilling to accede to the mother’s request for the restriction given that the restriction would assist in assuaging the mother’s anxieties, her mistrust of the father and the anxiety caused by the conflict. Counsel noted that there was some appearance of the father “lording it over” the mother in relation to financial matters, and that the father was taking the child on expensive vacations and claiming that his wife pays, whereas it now appeared from evidence arising during the trial that the money for these trips came from the business. In light of these matters, it was submitted that the mother’s mistrust was understandable.
Counsel submitted that in the current climate of fear about child abduction and in light of recently publicised abduction cases, the mother required an order to assuage her fears so that her parenting capacity was not diminished. Counsel for the mother submitted that the restriction sought would not impact negatively on the father, given that he generally travelled to and through countries which were signatories to the Convention, and the order would be in the child’s best interests.
Counsel for the father submitted that in essence the question to be answered is whether making an injunction is a proper exercise of the Court’s power, having regard to the evidence. Counsel submitted that here, there was a very weak case in support of the mother’s application for an order restricting the father in the manner requested, because it is self-evident that once a child leaves the Australian Commonwealth in the company of a parent, no orders made by an Australian court are able to protect that child from abduction.
Counsel for the father submitted that the father enjoys travelling to Israel through Asia and holidaying there with his wife, and his desire to have the benefit of the child joining him is reasonable. Counsel submitted that it was unclear whether the mother was seriously proposing that the father was an abduction risk or whether she was merely frightened, but that in light of the father’s character, it was inappropriate to suggest that a restriction should be placed upon him.
Counsel submitted that it is generally understood that courts do not make injunctions without a proper basis. Here, the mother was quite open with her reasons for seeking an injunction: an injunction would make her “feel better,” and she did not trust the father. Counsel submitted that when that evidence of the mother was weighed against the outcome of any injunction imposed in accordance with the mother’s wishes, the outcome appeared to be disproportionate.
Name change application
Evidence of the father
The father deposed that it was the child who should decide whether or not her name should be changed. He believed the child’s wishes should be respected. He deposed that the child had told him she did not wish to have her name hyphenated. Consequently, he did not consent to the child’s name being changed until the child made the decision.
Ms Z’s untested evidence was that the child told her she did not wish to change her name to Jacobova-Stein. She deposed that the child said she wished the mother would not force the issue as the mother “has had to suffer with lots of names so why does she want me [the child] to too”. The father’s wife noted that the mother writes on all of the child’s school books “([Jacobova]) [Stein]” or “[Stein] ([Jacobova])” and deposed that the child said she was teased at school about this.
In cross-examination, the father maintained his position. He confirmed that Ms B had accurately recorded his views in her report.
In cross-examination the father proposed that the child should make the decision when she is eighteen years of age. The father said that the child had shown him her Instagram account where she was being teased because of her two names. When asked whether the father would have any issue with the child deciding to hyphenate her name, the father indicated that he believed she was too young to make the decision and was under pressure from her mother.
The father acknowledged that the child had raised the issue with him, but said that he had deflected the discussion. He said he did not discuss the matter with her.
Evidence of the mother
The mother deposed that she had long ago reverted to her maiden surname of Jacobova and wished to change the child’s surname from Stein to Jacobova-Stein. The mother deposed that the father had consistently failed to attend to the signing of an Application to Register a Change of Name.
The mother deposed that, as she has sole parental responsibility for the child, she is responsible for all the child’s documentation including documents relating to her health and education. She deposed that it was “cumbersome and inconvenient” to explain her relationship with the child when completing forms and that she often writes her surname in brackets to clarify her relationship with the child. The mother deposed that the differences between her surname and the child’s surname caused “considerable confusion” at the school and at the child’s sporting and social events. She contended that “it would be much easier” if the child had a hyphenated name so that “there is an identification with the maternal family as well”. The mother proposed to pay for the registration of the name change.
The mother deposed that at the time of the child’s birth, the parents agreed to the name Jacobova-Stein, which was written on the child’s “identification document” at the hospital when she was born. A copy of the document was annexed to the mother’s affidavit. The father denied that there was ever such an agreement. He doubted the authenticity of the photocopied “identification document” annexed to the mother’s trial affidavit, because the hyphenated surname was written in black marker whereas the other writing on the document appeared to be written in ink pen. Counsel for the mother then tendered the original document as an exhibit (Exhibit J). On the original document, the name “Jacobova-Stein” appeared in thick pink writing whilst the remainder of the document was completed in fine black ink.
In cross-examination, the mother had difficulty explaining the need for the change of name for the child in a child focused manner. The mother’s evidence was that the name change was necessary for her own needs in dealing with the school. When asked about the benefit to the child of having the hyphenated name, the mother initially responded that she wanted the child to have her mother’s name, and when the question was repeated the mother said the benefit was that the child would have both parents’ names.
The mother said that she did not discuss the name change with the child. In explanation for why she had labelled the child’s school books with the hyphenated name without the father’s consent, she said that she had not received certain emails and there had been confusion with the school because her name was not recognised in connection with the child. She said that she had used the hyphenated name on the child’s school books to prevent confusion. In response to being questioned about what effect this had on the child, the mother said that it had no effect, that the child was quite happy with the name, that she had never forced it upon the child, and that the hyphenated name had been on the child’s books since kindergarten. The mother noted that the father was still recognised in the hyphenated name.
Section 129(2) of the Assessment Act provides for the modification of orders made under s 124. Section 129(1) of the Assessment Act provides:
(1)If an order under section 123A or 124 is in force in relation to a child (whether or not all things ordered to be done by the order have been done):
(a)the court that made the order; or
(b)another court having jurisdiction under this Act in which the order has been registered;
may under this section, by order:
(c)discharge the order; or
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(e)if the operation of the order has been suspended under paragraph (d)--revive its operation wholly or in part; or
(f)subject to subsection (3), vary the order (including any matter specified under subsection 123A(3), or any statement made under section 125, included in the order) in any way.
Relevantly, s 129(2) of the Assessment Act provides that the Court must not make an order under subsection (1) unless the Court is satisfied that it would be:
(a)just and equitable as regards the child, the carer entitled to child support and the liable parent concerned; and
(b)otherwise proper;
to make the order.
Section 129(5) of the Assessment Act provides:
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and a liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4),(6),(7),(7A) and (8).
Section 129(6) of the Assessment Act provides:
In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
Section 129(7) of the Assessment Act provides:
Subsections (5),(5A) and (6) do not limit the matters to which the court may have regard.
Section 129(11) of the Assessment Act provides:
Subject to any order made under section 131, the discharge of an order does not affect the recovery of arrears due under the order, or under this Act, when the discharge takes effect.
Section 117(4), (6), (7), (7A) and (8) of the Assessment Act outline the numerous factors about which a court must be satisfied before making an order under s 129(1). It is these factors about which I must be satisfied in order to discharge the child support order.
The power to make the injunction sought by the mother is provided under section 68B of the Family Law Act.
Conclusions
Conclusion about the non-periodic child support
The 2008 final consent order sought to be enforced is not a parenting order but was clearly made pursuant to s 124 of the Assessment Act. It is “an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support”. I am not persuaded that any “12 month rule” applies to the enforcement of arrears of such an order for child support.
Any “12 months rule” referred to for spousal maintenance arrears in the past in any event was no more than a discretionary guideline and the 12 month period is arbitrary. The Court has a discretion as to the period in respect of which accumulated arrears of child support will be enforced and also as to whether they should be enforced at all. The Court’s discretion is unfettered but some of the factors I have taken into account are the following:
·The father at all times has been aware of his obligation under those orders;
·The parents are in agreement about the child’s education and the father conceded that the child should continue to attend the school where she has always been enrolled;
·The mother has been required to undertake the financial obligation of the father to pay his half share of the school fees and ancillary expenses;
·I accept the mother’s evidence that her living circumstances have been adversely affected by undertaking this additional financial responsibility which has contributed to her living with the maternal grandparents for their support rather than living independently;
·The lack of appropriate explanation or adequate reasons for the father failing or refusing to comply with his obligations to pay a half share of the school fees and ancillary expenses when he was earning an income;
·The lack of full and frank disclosure of the father’s financial position;
·It can be inferred on all the evidence that the reasons why the mother did not pursue the father for the payment of the arrears in a timely fashion would appear to be founded on the father’s bankruptcy and his failure to lodge income tax returns.
I accept the evidence of the father that for the period 2008 until November 2011 he was bankrupt and unemployed. There is no evidence that he had the capacity to comply with his obligations to meet those payments during that time. There is no evidence that he owns any real property.
I find that the father has a weekly income of at least $1,000 which he shares with his wife. I find that an amount of $800 per week is paid into his wife’s account by a contractor of the business. I find on his evidence in cross-examination that half of the father’s weekly rent of $550 is paid by his business. This evidence is also consistent with his financial statement.
The mother accepted in cross-examination that the father had been unemployed for periods of time after being discharged from bankruptcy in 2011. There is no evidence that the father had the capacity to comply with his obligation to pay money in 2012.
I find that the father and Ms Z are both directors of Y Pty Ltd. They are both shareholders. I accept the father’s evidence that he started his business in 2013. The ASIC extract (Annexure CJ-2 to the mother’s trial affidavit) records the father being appointed as a director in May 2013 and Ms Z being appointed as a director in December 2015.
I accept the evidence of the father at the time of the hearing that he was not in arrears with his periodic child support as assessed by the Child Support Agency.
I do not accept that the father’s circumstances were such that he did not have the capacity to meet his obligations to pay half of the school fees and ancillary expenses after 2013.
I find that the father has travelled overseas and had a number of holidays since 2014. I find that he has travelled to Southeast Asia in 2015, to Israel via Thailand in 2014 when his mother-in-law was dying; he has had two trips to the Yarra Valley, a holiday on a houseboat in 2015, a holiday in north west Victoria, a holiday in Sydney staying at a five star hotel and a holiday in Queensland two or three years ago.
I find that the father received amounts in the sum of $97,762 into the Y Pty Ltd account in 2015 which he could not explain with any clarity. The father has the benefit of splitting his income with his wife which reduces his periodic child support assessments. The father failed to provide detailed financial information about his business deferring to his accountant. I found his answers in cross-examination about his financial affairs to be unhelpful. The father has had the financial capacity to holiday overseas and has provided no satisfactory explanation for his non payment of the arrears.
The father has not approached the Court to discharge or vary his obligations under order 16 of the 2008 final consent orders, until these proceedings. There is no satisfactory explanation for this.
I do not place much weight on the fact that the mother has not sought to enforce the orders earlier. This is because I accept her evidence that the father has not been forthcoming regarding his financial circumstances and she has encountered difficulty discovering his financial circumstances for the purposes of this application. It has always been open to the father to make an application to modify or discharge the 2008 final consent order. This must also be considered in the light of the father having appeared at Court to pursue contravention applications against the mother.
There is no evidence that the father owes half of the 2007 kindergarten fees which pre-date the 2008 final consent orders.
I find that the arithmetic for the agreed figure taken from the table of the mother is incorrect. The agreed figure was $99,763 according to the mother’s table but is in fact one half of $198,432.90 which is $99,216 in round figures.
Exercising my discretion, I propose to deduct from $99,216 half of the 2007 kindergarten fees ($6,060) and half of the total amounts incurred, in accordance with the table outlined in these reasons, for the years 2008 until and including 2013. (Half of the total kindergarten fees for 2008 are $6,060, half of the school and ancillary expenses for 2009 are $7,334.50, for 2010 are $7,920, for 2011 are $9,521.39, for 2012 are $9,690.58 and for 2013 are $11,182.75). This amounts to $51,709.22 to be deducted from $99,216.
Under Rule 20.07(a) of the Rules, it is appropriate to declare the total amount owing under the father’s obligation to be the amount of $47,507.
On all the evidence I am satisfied that the father currently has the capacity to pay half of the school fees and ancillary expenses for the child’s education. I am not satisfied that it is just and equitable as regards the child, the father and the mother and otherwise proper to discharge order 16 of the consent orders made 21 November 2008.
I am satisfied that it is appropriate to order that the father pay the mother $47,507 and to refuse to discharge the order so that the father’s obligation to pay half of the school fees and ancillary expenses continues.
Regarding enforcement, I accept on the balance of probabilities that the father does not own any real property or assets other than his car and his motorcycle. There was no evidence to support the assertion of the father that he requires the use of the motorcycle for work because of a back problem. In the event that he cannot pay the amount he owes to the mother within 60 days, then his obligation should be enforced by an order for the seizure and sale of his motorcycle to satisfy in part the debt.
In the event that the debt is not satisfied then the husband is to pay instalments of $500 per week to the mother.
I am satisfied that he has financial resources from his business which are sufficient to make weekly instalment payments to the mother of $500 to pay the amount of $47,507.
Conclusion about the spend time issue
The father is not religious, and not a member of a synagogue. His reasons for the child to spend time with him on the Jewish festivals in dispute appeared to be to share cultural experiences with the child and to address what he claimed to be an imbalance in previous parenting arrangements. In closing submissions, counsel for the father submitted that because the child had historically enjoyed the opportunity of spending time with the mother and her extended family for those occasions, it was fair that the child should have the opportunity to spend these occasions with the father each alternate year.
One of the principles underlying the objects of the Family Law Act under s 60B(2)(c) is that parents jointly share duties and responsibilities concerning the care, welfare and development of the children. This applies to the child’s education. Under the additional considerations in s 60CC(3) is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child. There is no dispute that the father has failed to comply with his obligations under the final parenting orders for the payment of non-periodic child support to the extent of the arrears outstanding and that these obligations have been borne solely by the mother.
The mother has sole parental responsibility under the consent orders made 29 April 2016. As there is no order for equal shared parental responsibility I am not required to consider whether it is in the child’s best interests, and reasonably practicable, that the child spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.
In 2008 the parties agreed to final parenting orders which provided for the child’s time spent with the father to be suspended for the occasions of Passover and the Jewish New Year. I accept the evidence of the mother that these are significant religious occasions celebrated by the maternal family and enjoyed by the child. I accept the evidence of the mother that the child participates in the religious observances on these occasions and has traditionally done so. Under s 60CC(3)(b) the nature of the relationship of the child with other persons including any grandparent or other relative of the child is an additional consideration. I accept that the child’s relationship with the maternal family is enhanced by her participation in the Passover and Jewish New Year celebrations on these occasions. I also accept that any change to these historical arrangements would not be in the best interests of the child pursuant to s 60CC(3)(d) having regard to her particular vulnerabilities outlined by Ms B. Section 60CC(3)(g) of the Family Law Act is also relevant here because I accept that the culture and traditions of the child and the mother in the celebration of these occasions is significant for the child.
The mother has made certain concessions in the latest final parenting orders which were agreed regarding the time spent by the father with the child. However there are no reasons consistent with the best interests of the child for changing the historical arrangement in place for Jewish New Year and Passover which was agreed by the parties since 2008. I accept the evidence of the mother that the father has historically been inconsistent in spending time with the child for the other Jewish celebrations.
Conclusion about name change issue
The mother seeks to change the child’s surname on her birth certificate to the hyphenated name incorporating both parents’ surnames. The father opposes this change and proposes that the child make her own decision when she is eighteen.
I reject the evidence of the mother that there was an agreement for a hyphenated surname when the child was born because the birth certificate of the child was registered with the father’s surname. I accept the “identification document” tendered by the mother Exhibit J as genuine and it appears to be a hospital document identifying the baby as “Jacobova-Stein”. This discrepancy between the birth certificate and the identification document indicates that at the time of the child’s birth there may have been issues, disagreement or uncertainty about what ultimately the child’s surname should be.
I accept the evidence that the mother has added the surname “Jacobova” along with the surname “Stein” to the child’s books since kindergarten but there is no clear evidence as to whether the child is widely or generally known by the hyphenated name. There is no independent evidence about the use of the hyphenated name and it would appear that the mother’s proposal is a means to ensure that a hyphenated name is used consistently. There is no clear evidence in the mother’s affidavit material that the child is known by the hyphenated name. On all the evidence I am not satisfied on the balance of probabilities that the child is currently known by the hyphenated name.
The expert evidence is clear that the child has been adversely affected by the parental conflict. There is no expert evidence which might form the basis of any conclusion that it would be in the best interests of the child for her surname to be changed.
There is also no evidence as to the wishes of the child who is aged 12.
I do not accept the untested evidence of Ms Z about what she claims the child said to her about her name. As the family consultant has pointed out, the child is anxious to please both parents.
Chapman v Palmer (1978) FLC 90-510 is one of the leading cases in relation to name changes. In that case, Evatt CJ, Asche and Marshall SJJ said at 77,673-4:
In the reported decisions on this point, judges have shown a reluctance to recognise that the sole custodian of a child has the right to bring about a change in the surname of a child. To this extent the choice of the surname of a child differs from other aspects of guardianship and custody, such as choice of school or choice of a religion. In these matters the Court has been slow to interfere with the decision of the custodial parent. … In all these matters the guiding principle is that the welfare of the child is paramount.
… The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question.
The Court went on to say at 77,674:
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
After listing a number of factors that may be relevant in making a decision about whether a name change is conducive to the welfare of the child, the Court commented at 77,676:
To conclude, it must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child's surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child's name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child's mind.
Because of the sensitivities and vulnerabilities of the child as outlined previously by the family consultant, the inconsistency between the child’s legal name as provided on her birth certificate and the hyphenated name by which she is apparently sometimes currently known may contribute to the child’s anxieties and be a reminder of the conflict. However implementing a change in a vacuum of evidence about the wishes of the child would be likely to exacerbate her problems by introducing a shift to the child’s identification or self-perception.
The evidence of the mother does not establish that it is in the child’s best interest to change her surname. I am not satisfied that it is in the best interests of the child for an order to be made changing her birth certificate to the hyphenated name proposed by the mother.
I am not satisfied that the child’s surname presents a difficulty for the mother or the child such that it overrides consideration of the unknown effect that a change of name might cause the child with her particular vulnerabilities in the midst of the parental conflict.
I am not persuaded on balance that it is in the best interests of the child to make an order to change her surname at a time when she is extremely vulnerable to the parental conflict on the unchallenged evidence of the family consultant.
Conclusion about restraining order sought
In the latest consent orders, the parties agreed subject to conditions that upon delivery of this judgment each of them be permitted to travel with the child outside the jurisdiction. The mother seeks a restraint on the father travelling with the child to any country which is not a signatory to the Hague Convention.
The father opposes any order being made restraining his travel outside the jurisdiction with the child other than the conditions agreed by way of the consent orders already made.
The mother’s reasons for seeking the restraint upon the father are twofold. Firstly, she does not trust the father and is concerned that he may fail to return the child to Australia. Secondly, the mother seeks the order on the basis that it would reduce her anxiety about the father contravening any orders. Counsel for the mother argued that the mother has now made a concession in consenting to the father travelling with the child overseas and that there can be no justification for the father refusing to agree to the restraint because there is no evidence of any need for the father to travel to any destination which is not a signatory to the Hague Convention. He submitted that there may well be an impact on the mother’s parenting without the security of such a restraining order upon the father.
A balance is required in considering the best interests of the child here between what the mother asserts is a risk of abduction of the child by the father in failing to return the child to Australia, and what the father proposes, which is the capacity to travel to any country with the child provided the conditions agreed upon by way of the consent orders are met.
The father has been resident in Australia for 18 years and there is no evidence to support the mother’s fear that the father would fail to return the child to Australia after an international holiday. The child is also 12 years of age and old enough to express her own views.
The level of distrust exhibited by the mother in the post separation relationship is, in my view, unlikely to be ameliorated by the restraining order she seeks to the extent that any change will positively affect her parenting of the child or her relations with the father. The mother has not adduced any expert evidence about her anxiety.
In terms of the Family Law Act, any abduction of the child to any country regardless of whether it falls under the Convention would be serious because of the difficulties of recovery mechanisms under the Hague Convention, outlined previously. It is also a criminal offence to take a child outside Australia in breach of orders (Family Law Act, s 65Y).
I accept the unchallenged opinion evidence of the family consultant that there should be no restraint or restriction on the child spending overseas holidays with the father.
An order for an injunction in relation to a child is a discretionary matter. I am not satisfied that it is appropriate for the welfare of the child to impose the injunction sought by the mother and I am not satisfied that it is just or convenient to do so. Accordingly I propose to dismiss the mother’s application for the injunction.
As agreed between the parties by way of minutes of consent filed I propose to discharge the Watch List order previously made in paragraph 15 of the final consent orders made 21 November 2008.
I certify that the preceding two hundred and fifty-seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 September 2016.
Associate:
Date: 23 September 2016