KEARNEY & DILLON
[2013] FamCA 630
FAMILY COURT OF AUSTRALIA
| KEARNEY & DILLON | [2013] FamCA 630 |
| FAMILY LAW – PROPERTY SETTLEMENT – Where the husband and wife to a marriage seek an alteration of their property interests upon the breakdown of their relationship pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the husband and the wife cohabited for approximately nine and a half years – Where there are two children of the relationship – Where the children are aged eight years old and six years old – Where the parties agreed that contributions to the date of separation should be assessed equally – Consideration of post separation contributions – Consideration of relevant factors under section 75(2) of the Act and particularly the husband’s greater earning capacity than the wife. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Budding & Budding [2009] FamCAFC 165 Goode v Goode (2006) FLC 93-286 Gyselman & Gyselman (1992) FLC 92-279 In the Marriage of Bevan (1995) FLC 92-600 In the Marriage ofMitchell (1995) FLC 92-601 Saberton & Saberton [2013] FamCAFC 89 Stanford & Stanford [2012] HCA 52 |
| APPLICANT: | Mr Kearney |
| RESPONDENT: | Ms Dillon |
| FILE NUMBER: | SYC | 5653 | of | 2010 |
| DATE DELIVERED: | 26 August 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 3, 4, 5 and 6 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Dettmann Longworth Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Robyn Sexton & Associates |
Orders
Parenting
The parties shall have equal shared parental responsibility for the children of the marriage, namely L Kearney born on … 2004 (“L”) and M Kearney born on … 2006 (“M”).
By consent the children are to live with the wife and the husband as follows:
(a)during school holidays excluding the Christmas school holidays, for one half of the holiday period with each parent by agreement and, failing agreement, then with the husband for the second half of the holidays at the conclusion of Term 1 and Term 3 and with the husband for the first half of the holidays at the conclusion of Term 2.
(b)
during any Easter period (being from 9.00 am on Good Friday until
6.00 pm on Easter Monday) which falls outside of the school holidays as follows:
(i)from 9.00 am on Good Friday until 6.00 pm on Easter Saturday with the husband and
(ii)from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday with the wife
provided that where the Easter period falls within the school holidays, the children will spend the Easter period with the parent with whom they are already spending time in accordance with these orders.
(c)during Christmas school holidays as follows:
(i)for the 2013/2014 Christmas school holidays the children will be with the wife for the first period of 14 days, with the husband for the second period of 14 days, and for the balance of the holiday period for the first half with the wife and the second half with the husband
(ii)for the 2014/2015 Christmas school holidays the children will be with the husband for the first period of 14 days, with the wife for the second period of 14 days, and for the balance of the holiday period for the first half with the husband and the second half with the wife
(iii)for the 2015/2016 Christmas school holidays and each alternate year thereafter, the children will spend the first half of the holiday period with the wife and the second half of the holiday period with the husband
(iv)for the 2016/2017 Christmas school holidays and each alternate year thereafter, the children will spend the first half of the holiday period with the husband and the second half of the holiday period with the wife.
(d)for the purpose of Orders 2(a) and 2(c) above:
(i)school holidays will commence at the end of the school day of the children’s last day of attendance at school and will conclude at the beginning of the school day on the children’s first day of attendance at school
(ii)changeover will take place at 12 noon on the middle day of the holidays, provided that where there is an odd number of nights in the school holiday period, the children will spend the additional night with the parent with whom they spend the first half of the school holiday period.
The children will spend the first weekend of school term with the parent with whom they did not spend the last half of the holidays, and the first weekend of school term will be defined as meaning the weekend immediately after the children have resumed attendance at school.
When changeover will not occur by way of collection or delivery to or from school, the parent with whom the children will be spending time in accordance with the Orders will collect the children from the residence of the other parent at the commencement of that period, unless otherwise agreed.
The children will spend time with the parties on the following special days as follows:
(a)with the wife on Mothers’ Day, from 9.00 am until before school the following day
(b)with the husband on Fathers’ Day from 9.00 am until before school the following day
(c)with the parent with whom they are not already spending time in accordance with these Orders on each of the children’s birthdays:
(i)where the birthday falls on a weekend, from 9.00 am to 12 noon
(ii)
where the birthday falls on a weekday, from after school to
7.00 pm
and where necessary, the arrangements specified in these Orders will be suspended to enable the children to spend the specified time with the relevant parent.
Within two months of the date of these Orders, each of the parties will provide to the other in writing details of their first and second preference in relation to the child L’s secondary education, with such proposal to include the proposed school and the proposed year in which L would commence at that school.
Within one month from the date of receipt of the proposals referred to in
Order 6 above, each of the parties will respond to the proposals, and in the event that a proposal is accepted by either parent, the parties will thereafter forthwith do all acts and things to cause L to be enrolled for attendance at the agreed school for commencement in the agreed year.
In the event that no agreement is reached after the exchange of proposals and responses referred to in Orders 6 and 7 above, then the following will apply:
(a)the parties will forthwith do all acts and things and sign all documents necessary to secure L’s enrolment at each of the schools proposed for the years proposed by each parent
(b)the parties will attend mediation no later than two months from the date the responses referred to in Order 7 above and each party will make a genuine effort to resolve the issue at that mediation.
The Court notes that Orders 2 to 8 above are made by consent of the parties.
During school term, otherwise than as set out in Orders 11 and 12 below, the children shall live with the wife.
During school term until the end of Term 3 in 2014 the children shall live with the husband for five days in each fortnight as follows:
(a)in week one, from after school on Thursdays until 4.30 pm on Fridays, with the Friday changeover to take place at the wife’s house
(b)in week two, from after school on Thursday to the commencement of school the following Monday.
During school term as and from the end of Term 3 in 2014, the children shall live with the husband for six days in each fortnight as follows:
(a)in week one, from after school on Wednesdays until the commencement of school the following Tuesday.
Property
Within 60 days from the date of these Orders, the wife shall pay to the husband by way of property settlement the sum of $481,238.
Simultaneously with the transfer of funds by the wife to the husband referred to in Order 13 above, the husband shall do all acts and things and sign all documents necessary to cause to be transferred to the wife all of his right, title and interest in the property situate at Suburb V, New South Wales, being all the land in folio identifier … (“the V property”).
Simultaneously with the transfer of the V property referred to in
Order 14 above, the wife shall procure a discharge of the husband’s obligations under the loan to Commonwealth Bank of Australia secured by way of mortgage over the title of the V property.
Simultaneously with the transfer of the V property referred to in
Order 14 above, the wife shall pay to the husband her share of the parties’ joint debt to Mr and Mrs K, such sum being $95,000, and the husband shall simultaneously with the wife’s payment indemnify her in relation to that debt.
Simultaneously with the transfer of the V property referred to in
Order 14 above, the wife shall procure the husband’s discharge from the parties’ joint line of credit liability and indemnify the husband from and against such liability. Pending such discharge, the wife shall charge her interest in the V property with the obligation to repay the joint line of credit liability.
In the event that the wife does not pay to the husband the sum referred to in Order 13 above within 60 days, the following (those being Orders 18(a)–(c)) shall take effect in substitution of Orders 13 to 17 above:
(a)the husband and the wife are forthwith ordered to do all acts and things and sign all necessary documents to cause the sale of the V property at the best price reasonably attainable
(b)for the purpose of giving effect to the sale of the V property:
(i)
the parties shall list the property for sale with such agent as they agree to appoint and, in default of agreement, with an agent appointed by the President of the Real Estate Institute of
New South Wales (or the President’s nominee). The costs of and incidental to the appointment of an agent shall be borne by the parties equally
(ii)
the parties shall agree on an independent solicitor to undertake the conveyance of the home and, in default of agreement, with a solicitor appointed by the President of the Law Society of
New South Wales (or the President’s nominee)
(iii)the parties shall confer in relation to the method of sale, the sale price, any reserve price that is fixed, advertisement of the sale and other aspects of the sale and, in the event the parties are unable to reach agreement about any aspect of the sale, they shall accept the advice of the selling agent.
(c)upon the sale of the V property in accordance with Order 18(a) above, the husband and the wife shall do all acts and things to cause the proceeds of sale to be paid and distributed in the following manner and priority:
(i)in payment of all legal costs, commissions, disbursements and agents’ expenses including advertising costs incurred in relation to the sale.
(ii)in reimbursement to either party of any sale costs paid in advance by that party.
(iii)in adjustments of rates and other outgoings, if any.
(iv)in discharge of the loan to Commonwealth Bank of Australia secured by way of mortgage over the title of the property.
(v)in discharge of the parties’ joint line of credit facility.
(vi)
in discharge of the debt owing to the husband’s parents,
Mr and Mrs K, such sum being $190,000.
(vii)in payment to the wife of 65% of the balance then remaining.
(viii)in payment to the wife of the sum of $217,410.
(ix)in payment to the husband of the balance then remaining.
The wife shall indemnify and keep indemnified the husband in relation to the loan from her mother, Ms D.
Within 28 days of the date of these Orders the wife shall make available for collection by the husband the following items presently stored at the V property:
(a) a bookshelf made by the husband’s grandfather
(b) a dining table and chairs commissioned by the husband
(c) a digital copy of family photos in the wife’s possession
(d)documents in the husband’s name and/or relating to the husband’s professional practice
(e)such other items as are agreed by the parties as having special significance to the husband.
Following collection by the husband of the items listed in Order 20 above, the wife shall hereby be declared the sole legal and beneficial owner of the contents and personalty stored at the V property and the husband will be declared as against the wife the sole legal and beneficial owner of the furniture, furnishings and personalty in his possession.
The Court notes that Order 20 is made by consent of the parties.
Other than as provided for in these Orders, the husband and wife are hereby declared the sole legal and beneficial owners of all other property, including but not limited to shares, personal effects and superannuation entitlements, currently in their name, possession and control.
Spouse maintenance
The wife’s application for spouse maintenance is dismissed.
Child support
The interim Order with respect to the payment of child support made by Monahan FM (as his Honour then was) on 16 March 2011 in the terms set out below shall continue:
(9)Pursuant to s.117 of the Child Support (Assessment) Act 1989 (Cth), for the period from 23 March 2011 until further order, there be a departure from the administrative assessment of child support payable by the Applicant to the Respondent for the children and the child support payable be set at the annual rate equivalent to a payment of $350.00 per child per week.
There shall be no departure from the annual rate of child support payable by the husband to the wife with respect to the children of $36,525 (which equates to $100 per day) for the current assessment period from 20 February 2013 until
19 May 2014.
The child support payments referred to in Order 24 above are to continue for each child until that child attains the age of 18 years or completes secondary education, whichever is the later.
The child support to be paid to the wife pursuant to Order 24 above shall be varied annually on and from 1 November each year in accordance with the variation of the Consumer Price Index for Sydney, as published by the Commonwealth of Australia Statistician as at 30 September of the year in question.
The Court notes that the husband has agreed to continue to pay additional expenses with respect to the children, those being for:
(a) education
(b) health insurance
(c)swimming lessons and such other extracurricular activities undertaken by the children with the consent of both parties
(d) occupational therapy (for the child L).
In the event that the husband fails to make any of the payments listed in
Order 28 above, the wife is granted liberty to apply on 14 days’ notice to the Court for an order that the husband make those payments.
General
Apart from Order 9 of the Orders of Monahan FM (as his Honour then was) on 16 March 2011, all previous Orders of this Court and the Federal Circuit Court with respect to the parties and the children are hereby discharged.
In the event of a party failing for a period of 14 days to do all acts and things necessary to give validity to the Orders herein, a Registrar of the Family Court of Australia at Sydney is hereby empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary in the place and stead of the defaulting party to give validity and effect to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kearney & Dillon 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 SYDNEY |
FILE NUMBER: SYC 5653 of 2010
| Mr Kearney |
Applicant
And
| Ms Dillon |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are proceedings for final orders with respect to parenting, property, spousal maintenance and child support issues between the husband and wife to a marriage. The period of cohabitation between the husband and wife was approximately nine and a half years.
There are two children of the relationship who are the subject of the parenting dispute between these parties: L Kearney (“L”), aged eight years, and M Kearney (“M”), aged six years (together, “the children”).
In accordance with parenting orders made in November 2012, the parents have equal shared parental responsibility and the children live with the wife ten nights per fortnight and with the husband four nights per fortnight.
The husband is 50 years old and works as a specialist medical professional. The husband has re-partnered and lives with his new partner,
Ms R, who has two children of a prior relationship: U aged eight years, and O aged six years. Ms R’s children currently live with the husband and Ms R eight nights per fortnight.
The wife is 42 years old and works as a school teacher on a
part-time basis. The wife has a background in research and professional writing.
With respect to property issues, the parties were at the final hearing able to reach some agreement in so far as they agreed that their respective contributions, both financial and non-financial, should be assessed as equal to the date of separation. The parties also presented to the Court an agreed order which deals with how they wish their furniture and personalty to be divided. The Court intends to make that order by consent as set out above.
The property issues which remain to be determined are discrepancies on the balance sheet and the parties’ contributions from separation until the date of hearing, a period spanning approximately three and a half years. The Court must also determine what, if any, adjustment should be made to the contribution-based assessment by reason of the matters referred to in section 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
With respect to parenting issues, the parties both support the Court making a final order that they have equal shared parental responsibility for the children. Further, they were able to reach agreement on a number of other issues, namely with respect to the time spent with each parent during holidays and on special days, and how future schooling arrangements for the children will be determined. The Court proposes to make by consent the parenting orders which were agreed to as set out above.
The parenting dispute is now primarily centred on the quantum of time that the children spend with each parent during school terms, whether their time with the husband should occur in a block period or not and arrangements for changeovers.
In addition to seeking parenting and property orders, the wife seeks orders with respect to spousal maintenance and child support to the following effect:
a)That the husband pays to the wife spouse maintenance of $650 per week.
b)That the Court orders a departure from the assessed rate of child support payable by the husband in respect of the children, such that the current rate of $350 per child per week is increased to $800 per child per week.
The husband opposes the wife’s application for spouse maintenance, and proposes an order for departure from child support to the effect that he pays to the wife in the sum of $250 per child per week.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1962. He is currently 50 years old.
The wife was born in 1970. She is currently 42 years old.
In April 2000 the parties commenced cohabitation in the United States of America (“the USA”). At that time both the husband and the wife were working in their respective fields: the husband was completing a specialist fellowship and the wife was employed as a professional writer.
In late 2001 the parties married. At around this time, the parties returned to Australia to live permanently and took up residence at a property in Sydney Suburb H which was owned by the husband (subject to a mortgage).
In 2002, the wife worked as a correspondent for an international publication and as a part-time researcher. The wife also undertook voluntary work as a director of Z Organisation.
In early 2003 the parties sold the husband’s property at Suburb H and purchased a property in OO. The property at OO was sold in 2006.
In 2003 the husband commenced private practice. The wife worked as his bookkeeper for around ten hours per week until the parties separated. The wife’s mother also assisted in this capacity.
In late 2004 the child L was born.
In April 2005, the wife reduced her hours as a correspondent to part-time. At this time, L was in day care two to three days per week. The wife resigned from her position at the international publication in late 2005 due to the pressure of caring for L.
In late 2005 the parties purchased a property at Suburb V (“the V property”) which became the matrimonial home until the parties separated in 2009. The V property has a current agreed value of $2,142,000, subject to a mortgage, and is held in the parties’ joint names.
Shortly after the purchase of the V property, the parties borrowed the following sums of money from their parents:
a)$200,000 from the husband’s parents and
b)$200,000 from the wife’s mother.
In November/December 2005 the wife travelled overseas for one week and the husband took leave from work to care for the child L.
In 2006 the child M was born. M commenced attending day care two to three days per week in February 2007.
In February 2009 the child L began seeing an occupational therapist who specialises in paediatric behavioural problems. L was also referred to a developmental paediatrician during that year.
In September 2009 the parties separated. The husband left the V property and the wife continued to reside there with the children. The wife has remained living in the V property since separation.
At around the time of separation, the parties attended a child psychologist to obtain advice on how to assist L in managing the changes that were occurring. L was at around this time placed on a Mental Health Plan which covered some of the costs associated with his occupational therapy and his psychology treatment.
In January 2010 the child L commenced school at N Primary School. The child M was enrolled in pre-school for two days per week, which increased to three days per week by the end of 2010.
On 8 September 2010 the husband filed an Initiating Application in the Federal Magistrates Court of Australia (as it then was) seeking parenting orders with respect to the children. At that time, the husband was spending time with the children on alternate weekends from Saturday mornings until Sunday evenings and on one weekday afternoon. By his Initiating Application, the husband sought orders for equal shared parenting responsibility and to significantly increase the time that the children lived with him.
In late 2010 the husband received approval to reduce his working hours by one day per week so that he could take on a greater parenting role. He currently works four days per week.
In 2011 the wife enrolled in a Bachelor degree at a University.
In March 2011 interim orders were made by Monahan FM (as his Honour then was). As to parenting, it was ordered that the parties would have equal shared parental responsibility for the children. The children were to live with the wife and spend time with the husband on a fortnightly basis as follows:
a)Week one: from Thursday afternoon until 6.00 pm on Friday.
b)Week two: from Friday afternoon until 6.00 pm on Sunday.
Under the orders the children were to, in addition to the above, spend half of the school holidays with the husband.
Under the March 2011 interim financial orders, the husband was ordered to pay the following:
a)spouse maintenance to the wife of $500 per week
b)mortgage repayments of $306 per week
c)contributions to the line of credit account of $137.77 per week
d)child support in respect of the children of $350 per child per week. This was an order pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) for departure from the administrative assessment of child support
e)private health fund premiums for the parties and the children.
It was also noted in the orders that the husband, by agreement, would continue to meet the expenses for the children’s education and day care, swimming lessons and occupational therapy (for the child L).
On 20 June 2011, orders were made by consent with the effect that the ownership and registration of the parties’ Subaru motor vehicle was transferred to the wife.
In late 2011 the parties were informed that L had been a victim of bullying at school. The school counsellor suggested that L train in martial arts to build his confidence. Both children were enrolled in martial arts classes with the consent of both parents.
In January 2012 the child M commenced primary school.
In March 2012 the husband commenced living with his current partner,
Ms R, at a rented property in Suburb L.
On 7 July 2012, the proceedings were transferred to the Family Court of Australia.
On 28 November 2012, the parties attended their First Day Less Adversarial Trial (LAT). Further parenting orders were made with the effect that from the commencement of the 2013 school term (29 January 2013) the children would live with the wife and spend time with the husband on a fortnightly basis as follows:
a)Week one: from after school on Thursday until 6.00 pm on Friday.
b)Week two: from after school on Friday until before school on Monday.
Under the orders the children were to continue spending half of the school holidays with the husband.
Pursuant to the November 2012 orders, the wife was entitled to and has taken the children for one additional Friday in the first term of school. At the hearing the Court was told that the parenting arrangements under those orders have been in place to the present time.
In January 2013 the wife commenced employment as a teacher at G High School for three and a half days per week. In this position the wife is on a temporary employment contract for one year.
The Orders Sought
Counsel for the husband provided the Court with a case outline document which set out the parenting and property orders which he sought at the commencement of the hearing. The Court notes that the parenting orders sought by the husband changed during the course of the hearing, in part as a result of the orders which the parties proposed by consent.
The parenting orders that the husband now seeks were contained in the “Skeletal outline of submissions on behalf of applicant husband” handed up by Counsel for the husband on the final day of the hearing. They are as follows:
(reproduced as original)
That [L] and [M] live with the father on such dates and at such times as agreed between the father and the mother and failing agreement as follows:
(a)Until 31 December 2013 during school term on a 2 week rotation as follows (weekly contact, total of 5 nights):
i.In week 1: from after school Thursday until Monday morning (4 nights) when the father will deliver the children to school;
ii.In week 2: from after school Thursday until Friday 4:30 pm
(1 night) when the father will deliver the children to the mother.(b)From the start of school in 2014
i.In week 1: from after school Thursday until Monday morning (4 nights) when the father will deliver the children to school;
ii.In week 2: from after school Wednesday until Friday morning (2 nights) when the father will deliver the children to school.
OR
(Longer Block option, 6 nights) From 1 January to 31 December 2014 during school term on a 2 week rotation as follows:
from after school Wednesday until Tuesday morning (6 nights) when the father will deliver the children to school; and the children will spend the first weekend of school term with the parent with whom they did not spend the last half of the holidays.
(c)From 1 January 2015 during school term on a 2 week rotation as follows:
from after school Tuesday until Tuesday morning (7 nights) when the father will deliver the children to school; and the children will spend the first weekend of school term with the parent with whom they did not spend the last half of the holidays
The property orders sought by the husband, as set out in his case outline document, are as follows:
(reproduced as original)
FINANCIAL ORDERS AS SOUGHT
1.That by way of s.79 adjustment the Court makes an Order in terms of paragraphs 2 to 9 below.
2.The following definitions for the purpose of these Orders:
(a)“the parties net assets and liabilities” shall mean the total value of all the parties assets and liabilities including but not limited to real estate, motor vehicles, furniture, home contents, and superannuation less the level of any debt secured against any of those items. It does not mean any credit card debts or personal loans incurred or accrued after the date of separation.
(b)“the home” means the property at [Suburb V] ("the home") Folio Identifier ….
(c)“the mortgage” means the mortgage to Commonwealth Bank of Australia, and associated loans & borrowings, secured against the title of the home.
3.That within 30 days of the date of these Orders, the husband and the wife do all acts and things and sign all necessary documents to effect the sale of the home and cause the proceeds of sale to be paid and distributed in the following manner and priority;
a.in payment of fees due for the nomination of a real estate agent, real estate agent's commission and legal costs and disbursements incurred in relation to the said sale;
b.adjustment of rates, if any;
c.in payment of all monies owing to Commonwealth Bank of Australia in relation to the mortgage.
d.In payment to [the wife’s mother] the sum of $55,000.
e.In payment to [the husband’s parents] the sum of $190,000.
f.in payment of the balance to the parties as follows:
i. to the wife such sum so that, taking into account all other assets, and resources she retains by virtue of these Orders, the wife receives on an overall basis 40% of the parties net assets and liabilities;
ii. to the husband such sum so that, taking into account all other assets, and resources she retains by virtue of these Orders, the husband receives on an overall basis 60% of the parties net assets and liabilities.
4.That pending the sale of the home:
(a)the wife shall have the right to occupy the home and shall pay and be responsible for all utilities and charges related to the use and occupation of the home;
(b)the parties shall pay and be responsible for all council rates and home and contents insurance;
(c)neither the husband nor the wife shall mortgage, charge, encumber or assign their interest in the home;
(d)the husband and the wife shall each hold the home in trust for themselves as tenants in common in shares consistent with these Orders.
5.That on an agreed date within 30 days after the date of these Orders the husband and the wife shall meet at the home and equally divide the furniture and contents of the home. Thereafter on an agreed date within a further 30 days the wife shall make available for collection by the husband his half share of the said items of furniture and contents.
6.That the husband and the wife shall each solely be entitled to the exclusion of the other to all other property and resources not already referred to in these Orders in the possession of that party at this date.
7.That:
a.after the payment referred to in Order 3(d), the wife shall indemnify and keep indemnified the husband in relation to any liability or debt to her mother [Ms D].
b.after the payment referred to in Order 3(e), the husband shall indemnify and keep indemnified the wife in relation to any liability or debt to his parents [Mr and Mrs K].
8.That save and except as these Orders provide to the contrary, each of the parties shall, by this Order, mutually release the other from all debts owing from one to the other.
9.That each party, as against the other, be solely liable for all and any costs, debts, expenses or liabilities of any nature whatsoever attaching to any asset or financial resource to which that party is entitled pursuant to these orders and that the liable party indemnify and keep indemnified the other party in respect of all and any such costs, debts, expenses or liabilities.
Child Support
10.That pursuant to s.117 Child Support (Assessment) Act 1989:
(a)the periodic rate of child support payable by the husband, during the period 1 December 2012 to 30 November 2013, for:
(i) [L Kearney] born … 2004 be varied by setting the annual rate of child support at $250 per week
(ii) [M Kearney] born … 2006 be varied by setting the annual rate of child support at $250 per week.
(b)The annual rate of child support payable to the wife pursuant to sub-paragraph [10(a)] herein be varied each year on and from 1 December 2013 and on each 1 December thereafter, in accordance with the variation in the Consumer Price Index for Sydney over the previous year as published by the Commonwealth of Australia Statistician as at 30 June of the year in question.
11.That each party shall be at liberty to apply on 7 days notice in relation to the implementation of these Orders.
12.That in the event that either party refuses or neglects to comply with the provisions of these Orders then the Registrar of the Court exercising competent jurisdiction shall be appointed pursuant to s.106A(1) of The Family Law Act 1975 to execute all deeds and documents in the name of the husband and/or the wife and do all acts and things necessary to give validity and operation to the said Orders.
13.That the wife pay the husband’s costs of and associated with these proceedings.
Counsel for the wife provided to the Court a document titled “Final orders sought by respondent wife”, which sets out the orders sought by the wife at the commencement of the hearing. The Court notes that the wife’s position with respect to some of these orders changed during the course of the hearing, in part arising from the orders which will be made by consent:
(reproduced as original)
FINAL ORDERS SOUGHT BY RESPONDENT WIFE
Parenting
1.That the children of the marriage … live with the wife.
2.That the children spend time with the husband as follows:
2.1during school term each alternate weekend from after school Thursday until before school Monday;
2.2during school holidays, excluding the Christmas school holidays, for one half of the holiday period by agreement, and failing agreement then for the second half of holidays at the conclusion of Term 1 and Term 3, and for the first half of holidays at the conclusion of Term 2.
2.3during any Easter period (being 9 am Good Friday until 6 pm Easter Monday), which falls outside school holidays as follows:
2.3.1from 9 am Good Friday to 6 pm Easter Saturday with the husband; and
2.3.2from 6 pm Easter Saturday until 6 pm Easter Monday with the wife.
Provided that where the Easter period falls within the school holidays then the children will spend the period with the parent with whom they are already spending time in accordance with these orders.
2.4during Christmas school holidays as follows:
2.4.1for the 2013/2014 Christmas school holidays the children will be with the wife for the first period of
14 days, with the husband for the second period of
14 days, and for the balance of the holiday period for the first half with the wife and the second half with the husband;2.4.2for the 2014/2015 Christmas school holidays the children will be with the husband for the first period of 14 days, with the wife for the second period of
14 days, and for the balance of the holiday period for the first half with the husband and the second half with the wife;2.4.3for the 2015/2016 Christmas school holidays and each alternate year thereafter, the children will spend the first half of the holiday period with the wife and the second half of the school holiday period with the husband;
2.4.4for the 2016/2017 Christmas school holidays and each alternate year thereafter, the children will spend the first half of the holiday period with the husband and the second half of the school holiday period with the wife.
2.5for the purpose of Orders 2.2 and 2.4 herein:
2.5.1school holidays will commence at the end of the school day of the children’s last day of attendance at school and will conclude at the beginning of the school day on the children’s first day of attendance at school;
2.5.2changeover will take place at 12 noon on the middle day of the holidays, provided that where there is an odd number of nights in the school holiday period, the children will spend the additional night with the parent with whom they spend the first half of the school holiday period.
2.6That for the purpose of Order 2.1 herein, the children will spend the first weekend of school term with the parent with whom they did not spend the last half of the holidays, and the first weekend of school term will be defined as meaning the weekend immediately after the children have resumed attendance at school.
3.That the children will spend time with the parties on the following special days as follows:
3.1with the wife on Mother’s Day, from 9 am until before school the following day;
3.2with the husband on Father’s Day, from 9 am until before school the following day;
and where necessary, the arrangements specified in Order 2 herein will be suspended to enable the children to spend the specified time with the relevant parent.
4.That both parents will:
4.1provide to the other parent as they are received copies of school reports and school notices;
4.2advise of the residential or contact address and phone number(s) of the children and of any changes to that address;
4.3advise the other parent of an emergency and urgent message contact number to contact and of any changes to that number;
4.4when either parent wishes to take the child away on holidays give to the other notice of the intended holiday specifying the intended destination, travel dates and contact numbers;
4.5notify the other parent as soon as possible of any serious illness or injury suffered by the child or children whilst in their respective care.
5.That the wife will retain the children’s passports, and the husband will return them to the wife at the conclusion of any trip in accordance with Order 6 herein.
6.That if either parent wishes to take the children out of Australia that parent to give to the other parent at least 8 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the children will be travelling, the intended destination, contact numbers and addresses for the child for the duration of the trip and the intended date and time of return.
7.That upon written notice being given by a parent pursuant to Order 6 herein, the other parent will within 7 days of the date of receipt of the said notice, sign all documents and do all acts and things necessary to cause the children’s passports to be delivered or be processed and made available to the travelling parent including, if relevant, signing all necessary passport applications and consent forms and providing the children’s birth certificate and any other associated documents required.
8.That in relation to the children’s names:
8.1The husband and the wife will forthwith do all things necessary, including signing all documents to enable the Department of Births, Deaths and Marriages (New South Wales) to amend the children’s birth certificates such that “[Dillon]” will be added as an additional middle name, and the children’s names will therefore be registered as “[L … Dillon Kearney]” and “[M … Dillon Kearney]” on their birth certificates;
8.2The husband and the wife will at all times ensure that both of the children’s middle names (“[… Dillon]” for [the child L], and “[… Dillon]” for [the child M]) are included on all documents and certificates upon which middle names are to be inserted.
9.9.1 That within 2 months of the date of order, each of the parties will provide to the other in writing details of their first and second preference in relation to [L’s] secondary education, such proposal to include the proposed school, and the proposed year in which [L] would commence at that school.
9.2That within 1 month from the date of receipt of the proposals referred to in Order 9.1 herein, each of the parties will respond to the proposals, and in the event that a proposal is accepted by either parent, the parties will thereafter immediately do all acts and things to cause [L] to be enrolled for attendance at the agreed school, for commencement in the agreed year.
9.3That in the event no agreement is reached after the exchange of proposals and response referred to in Orders 9.1 and 9.2 herein, then the following will apply:
9.3.1the parties will forthwith do all acts and things and sign all documents necessary to secure [L’s] enrolment at each of the schools proposed, for the years proposed by each parent;
9.3.2the parties will attend mediation no later than
2 months from the date of response referred to in Order 9.2, and each party will make a genuine effort to resolve the issue at that mediation.
Property settlement
10.That within 2 months of the date of order, the husband will do all acts and things and sign all documents necessary to cause to be transferred to the wife all his right title and interest in the property known as and situate at [Suburb V] in the State of New South Wales (hereinafter referred to as "the home"), being all the land in folio identifier ….
11.That simultaneously with the transfer referred to in Order 10 herein, the wife will pay to the husband by way of property settlement the sum of $475,000.
12.That in the event the wife does not pay the sum referred to in
Order 11 by the time specified, then the husband and wife will do all acts and things to cause the home to be sold for the best price reasonably obtainable, and for the purpose of giving effect to the sale:12.1The parties will list the home for sale with such agent as the parties may agree to appoint and in default of agreement as to the agent within 3 months of the date of these orders, such agent as the President of the Real Estate Institute of New South Wales (or the President's nominee) shall appoint ("the agent") and the costs of and incidental to such appointment shall be borne equally by the parties.
12.1The parties shall agree on an independent solicitor to undertake the conveyance of the home and if there is no agreement then the solicitor shall be appointed by the President of the Law Society of NSW or his/her nominee.
12.1The parties will confer in relation to the method of sale, advertising, sale price, reserve price and other aspects of the sale, and in the event the parties are unable to reach agreement about any aspect of the sale, the parties will accept the advice of the agent.
13.That upon the sale of the home pursuant to these Orders the parties shall do all acts and things necessary to cause the proceeds of the sale to be paid and distributed in the following manner and priority:
13.1in payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
13.2in reimbursement to either party of any sale costs paid in advance by that party;
13.3in adjustments of rates and other outgoings;
13.4in discharge of the loans secured by way of mortgage registered on the title of the home;
13.5in payment to the husband of the sum referred to in Order 11; and
13.6in payment of the balance then remaining to the wife.
14.That the wife indemnify and keep indemnified the husband in relation to the loan from her mother.
15.That the husband indemnify and keep indemnified the wife in relation to any loan from his parents
16.That the husband be declared the sole legal and beneficial owner of the following:
(a)shares in public companies in his name;
(b)the Toyota … motor vehicle in his name;
(c)proceeds of bank accounts in his name;
(d)superannuation accounts in his name.
17.That the wife be declared the sole legal and beneficial owner of the following:
(a)shares in public companies in her name;
(b)the Subaru motor vehicle registered in her name;
(c)proceeds of bank accounts in her name;
(d)superannuation accounts in her name.
18.That other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in their respective possession and control.
19.That other than as herein provided the husband and the wife each be declared the owner of such superannuation/annuity entitlements, and pension benefits to which each of them is or might become entitled in his or her own right.
20.That other than as herein provided each of the husband and the wife remain liable for any debts in his or her sole name at the date of the orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
Spouse maintenance
21.That pursuant to Section 72 of the Family Law Act the husband pay to the wife spousal maintenance in the sum of $650 per week, the first such payment to be made within 7 days of the date of this order, such payments to continue until 31 December 2018.
22.That the spousal maintenance to be paid to the wife pursuant to order 21 herein be varied each year on and from 1 November each year, in accordance with the variation of the Consumer Price Index for Sydney, as published by the Commonwealth of Australia Statistician as at 30 September of the year in question.
Child Support
23.That pending further order and pursuant to sections 116 and 117 of the Child Support (Assessment Act) the Child Support Assessment be varied such that the husband pay to the wife child support in the sum of $800 per child per week, the first such payment to be made within 7 days of the date of this order, such payments to continue for each child until that child attains the age of 18 or completes his/her secondary education, whichever is the later
24.That the Child Support to be paid to the wife pursuant to order
23 herein be varied each year on and from 1 November each year, in accordance with the variation of the Consumer Price Index for Sydney, as published by the Commonwealth of Australia Statistician as at 30 September of the year in question.
General
25.That in the event the husband or the wife refuses or neglects to comply with any of the Orders herein requiring a party to execute a deed or instrument, the Registrar or Deputy Registrar of this Court at its Sydney Registry is appointed pursuant to Section 106A of the Family Law Act to execute, in the name of the husband or the wife as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.
26.That each party have liberty to apply upon 7 days notice in relation to the implementation of these Orders.
27.That the husband pay the wife’s costs of and related to these proceedings.
The Evidence
The husband relied on the following documents at the hearing:
a)Initiating Application filed 8 September 2010
b)Affidavit of the husband filed 21 May 2013
c)Affidavit of Mrs K filed 21 May 2013
d)Affidavit of Mr K filed 21 May 2013
e)Affidavit of Ms R filed 16 May 2013.
The husband also filed a Financial Statement filed on 13 November 2012, which the husband verified the correctness of during his examination-in-chief. The husband relied on that Financial Statement as well.
Counsel for the husband also filed a document containing an outline of submissions on the final day of the hearing.
The wife relied on the following documents at the hearing:
a)Affidavit of the wife filed on 24 May 2013
b)Financial Statement of the wife filed 14 May 2013
c)Affidavits of Ms D filed 14 and 31 May 2013
d)Affidavit of Ms W filed 14 May 2013
e)Affidavit of Ms Y filed 14 May 2013
f)Affidavit of SK filed 14 May 2013
g)Affidavit of Ms A filed 14 May 2013.
For the purposes of assisting in the determination of the parenting issues, the Court appointed a single expert family consultant, Dr X (“the expert”). The expert released a written report on 21 October 2012 (“the expert report”) on which both parties rely.
The husband and wife each gave oral evidence and the following witnesses were called to give oral evidence:
a)the husband’s current partner, Ms R.
b)the expert (with respect to parenting issues only).
Both Counsel for the husband and the wife made oral submissions to the Court on the final day of the hearing.
Credit
It seemed to the Court that both the husband and the wife gave the Court an account which reflected the truth as they each saw it. The Court makes no adverse findings of credit with respect to either party.
Ms R impressed as a direct and truthful witness.
Parenting matters
With respect to parenting, the parameters of the dispute between the parties have narrowed and are now limited to the following:
a)how many nights and on which nights per fortnight the children will live with each parent during school term
b)whether the time that the children spend with the husband should be in a block period or not
c)the arrangements for changeovers on Fridays (whether this should be after school or at 4.30 pm).
In addition to the above, the Court notes that the wife in her minute of proposed orders seeks orders in relation to changing the children’s names. Specifically, she proposes that her surname “Dillon” be used as a second middle name for each child.
The husband opposed the making of these orders and confirmed in his oral evidence that he did not believe it to be in the interests of the children to have their names changed in the manner proposed by the wife.
This issue was not raised with the expert during cross-examination and Counsel for the wife did not make final submissions in relation to the wife’s proposed order for the name change.
The husband contends that there was no direct evidence given by the wife as to her reason for seeking the order. Further, he submits that the wife had the onus of proving in her case that it would be in the best interests of the children to make such an order and that she did not.
Apart from the evidence given by the husband as to why he opposes the orders sought by the wife, there is no satisfactory evidence before the Court to support the making of those orders and therefore it is not the Court’s intention to do so.
Relevant Law
The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA).
In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents
This is a case where the children will derive a benefit from having a meaningful relationship with each of their parents and each parent in their evidence acknowledges that this is so.
It appears that the children have clearly meaningful relationships with both of their parents. As noted by the expert, the parties also seem to have “a high level of respect for each other as parents” which was described in the expert report as “commendable.”
The husband acknowledges the commitment demonstrated by the wife to her role as the primary parent of the children and the significant career sacrifices she has made in the interest of discharging her responsibilities to the children. On this note, the expert reported as follows:
[The father] acknowledged [the mother’s] parenting capabilities and to the care giving role she has taken, forsaking her own career, whilst he furthered his own even though he believes that [the mother] has understated the role he played in the children’s care.
The parties pointed to the improvement in the children now that the husband is playing a larger part in their lives. With respect to the wife’s acknowledgement of the husband’s more active parenting role, the expert noted that:
She was cognizant (sic) of the changes she has observed in [the father’s] commitment to the children and to the improvements, especially in [the child L], which have resulted from a stronger father/child involvement in the past two years.
It seems that each of the parties acknowledge that the children are well served by the other parent and recognise that the parenting role of each of them is beneficial for their children. The only issue between the parties with respect to the children is the periods during which the children will spend time with each of them.
There is a measure of discomfort between the parties which is said to arise from the circumstances of the failure of their relationship. There is evidence before the Court of some unseemly communications between them, which appear to bespeak the usual emotions that accompany marriage breakdown and the concomitant symptoms in behaviour, including emotions such as anger, a sense of betrayal, disappointment, guilt and so on. In that sense, this marriage breakdown and its effects are not particularly unusual. Most importantly in this case, is the reaction of the wife particularly which has led to a lack of ease in communication between the parties. What also emerges is that communication between the parties has largely been by email and text messaging, and that has been largely effective.
Notwithstanding the evident difficulties that have arisen between the parties, the expert says that the level of communication between the parties does support substantial and significant time with the husband. The expert also notes that the parties have been able to shield the tension in their relationship from the children and the Court believes that this is so based on all of the evidence before it.
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence before the Court to indicate that the children have been or are being subjected or exposed to abuse, neglect or family violence which may cause to them physical or psychological harm.
The expert reported as follows with respect to the children:
From all accounts the children feel loved and cherished by the significant adults (including grandparents) in both households and share warm and loving relationships with each of them. They also feel safe and secure with both parents who featured as sources of emotional nurturance for the children. One of the positive outcomes of the separation for [the children] is that they are now spending more quality time with their father, who was much less involved in their lives during the marriage.
She went on to comment that:
Although there seem to be many positive aspects of the children’s interaction with Ms [R] and her children and there were also no concerns identified in respect of Ms [R], [the father] may want to be sensitive to the children’s disclosures about their experiences in the blended family situation and his plan to devote some time to them one on one or as a unit away from their step-siblings is recommended. It can be quite difficult for children to find their place in the sibling hierarchy when families blend.
The disclosures to which the expert refers above were noted elsewhere in the expert report and in evidence tendered by the parties. They include a report to the expert by the child L that “[Ms R’s children] do not listen to him and prefer to play with [M]” and a report by the child M that “Ms [R] makes different rules for her and [L] to those she makes for [her children].” As an example of this, M reported to the expert that Ms R’s children are allowed to speak in louder voices than her and L.
The expert further reported as follows with respect to L in particular:
The children are coping well academically, although socially and emotionally [L] has some sensory integration difficulties. This manifests itself in some idiosyncratic behaviour that might seem immature, emotionally dysregulated, contextually inappropriate and could possibly result in misunderstandings that impact on his relationships with others especially peers.
In light of the above, the expert warned of the need for consistency in dealing with the way L’s behaviour is managed.
The expert further observed that the children were engaged in a breadth of age appropriate activities and that this is supported by both the husband and the wife. Those activities are, she opined, “precisely those that would be considered necessary for healthy resolution of the developmental milestones that would be expected for children in the stage of middle childhood.”
In the circumstances of this case, the Court does not have concerns that the children need to be protected from any of the factors set out in this subsection.
Additional considerations
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children have expressed some views which will be given appropriate weight, given their respective ages and levels of maturity and understanding. It is not the Court’s view that the views of these children (aged five and seven year old) should be given any decisive weight, but that does not mean that they will not be given any weight.
The child M appears to have at one time been concerned about Ms R disciplining the child L by shouting at him. Notwithstanding this, each of the children expressed positive views to the expert about Ms R and their step-siblings.
Each of the children also seemed to enjoy and seek the company, consolation and love of each of their parents.
It appears in all respects that what the children have said supports a continuing relationship with each of their parents. Whilst there appear to have been some minor adjustment negatives in the blended household in which they spend time, the Court has confidence, given the intelligence and insight of the adults in their lives, that those adults will be able to act to ameliorate any such negatives.
(b)The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
On the evidence before the Court there appears to be no dispute that the children each have positive and meaningful relationships with each of their parents, their maternal grandmother and their paternal grandparents.
The wife gave evidence that she had some concerns regarding the relationship between the children and Ms R.
The husband in response submitted that the Court should have regard to the expert’s report at paragraph 46, where the following observation was made by the expert:
In their interaction with Ms [R] the children seemed relaxed and at ease. They conversed about everyday topics including activities they had been involved with whilst with their mother. They children played independently but occasionally commented on each other’s activity. [L] was observed to be quite playful with Ms [R] telling her, for example, that out of the window he could see the parking warden coming close to her car. Ms [R] was attentive and empathic to the children and allowed them to take the le[ad].
Based on the evidence of the husband, Ms R and the expert, the Court does not share the concerns of the wife with respect to the relationship between the children and Ms R.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The expert expressed the hope that once the parties have resolved this dispute they will be able to return to a space where they can parent collaboratively and take responsibility for making decisions jointly.
The husband and wife each in their evidence supported the role of the other parent, and there is nothing in the evidence which would lead the Court to conclude other than that each parent is willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent.
The parties have a high level of respect for each other as parents. The wife seeks to have the husband spend substantial time with the children in terms of four nights per fortnight; the husband seeks a greater time than that. It is really only the quantitative definition of substantial time which is the nub now of the parental disagreement.
The husband points out that despite their own experiences of the breakdown of their marriage, they have shown a significant level of sensitivity to the children’s needs at the time of the separation and responded in a child-focussed manner that minimised disruption to the children. This accords with the view of the expert, who opined that each of the parents has been able to maintain a civil relationship with the other in the presence of the children. Based on the evidence before it, the Court has come to this same view.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The expert assessed the wife’s attitude with respect to the children’s time with the husband during school term as being such that she believes it would be in their interests and provide greater stability to the children if they spent less time with the husband. It seems that the wife may be of the view that more time would add a feature of instability.
It is noted that the wife in this regard points to the problems of the blended family in the husband and Ms R’s home as iterated by the expert. In addition, she notes the difficulties that she has experienced in spending weekend time with the children arising from the present arrangement whereby Friday afternoons are allocated to the husband each week.
The husband from his point of view points to the arrangements that he has made to regulate his hours of work so that he can be with the children on Fridays. Despite this, the Court formed the impression that he was not unsympathetic to the wife’s problems, as can be seen in a proposal that he made to address this issue. The husband’s proposal was that the wife might nominate one weekend in each term when the Friday time with him would not take place, so that the wife could utilise that time to go away with the children on that weekend.
The expert points to the difficulties in equal time arrangements in circumstances where there is some constraint on ease of communication and where there is uncertainty in the geographical location of the parties’ places of residence in the future. The expert in her report also pointed to L’s particular problems and the husband’s work commitments as contra-indicating equal time. The Court notes that at that time the expert was not aware that the wife would be working three and a half days per week, as she is now.
Despite referring to contra-indicators of equal time in her report, the expert ultimately did recommend that the children spend substantial and significant time with the husband, and concluded that she sees that as being four or five nights per fortnight coinciding with the times that the husband is not working.
The wife has in her proposed minute adopted from 2014 a regime allowing overnight time with the husband from Thursday to Friday in one week and from Friday to Monday in the other week – a total of four nights per fortnight.
The expert in oral evidence noted that a year had passed since her written report and offered the opinion that the children in that year would have matured significantly. She said that it was a time when the children could manage more time away from their current caregiver, the wife.
Whilst perhaps accepting that there might be a change from her specific recommendation as to time spent with the husband, the expert did take the view that children are better served by spending a greater period of time living in one household than the other. This, she observed, was a recommendation in circumstances where the parties retained some difficulty in communication. She also observed that such a proposal would provide more continuity to a child.
In relation to the organisation of time, the expert proposed that the children should still at their age spend some time with each parent in each week. She opined that, in terms of age and maturity, the children are only just moving out of the phase of their lives where they need to see each parent each week.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
At the present time there appears to be no practical difficulty or expense associated with either of the children spending time with and communicating with either parent.
There is no evidence of any circumstances facing either parent that would affect the right of these children to maintain personal relations and direct contact with both parents on a regular basis.
Depending on any potential relocation of the parties in the future this position might change; however, there is no evidence before the Court to suggest that this is likely to be a problem in the future.
(f)The capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Each of the parties, the expert reports, acknowledges the ability of the other to provide for the needs of the children including emotional and intellectual needs.
There has been some suggestion about Ms R differentially treating the children of this relationship to her own children, O and U. It appears however that the constellation of that blended family and the problems that beset L may have caused some caution to be exercised by her children in dealing with L, who she asserts is capable of anger and idiosyncratic behaviour.
It seemed to the Court that Ms R in her evidence showed that she was aware of the problems. Further, the Court is of the view that the husband, having the benefit of the evidence in these proceedings, will be on the lookout for any continuation of them. The Court does not see these problems as other than requiring for the time being a greater consistency in the children’s lives with the clear delineation of a home base.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are young and developing and acquiring maturity. There is nothing in the lifestyle, culture and traditions of the children or either of their parents which the Court considers relevant.
Both children appear to be achieving appropriate milestones for their ages. The child L has some problems adumbrated in this judgment but the parties are aware of them and are dealing with them appropriately and consensually.
(h)If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that rightThis subsection does not apply.
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parties, the expert reports, appear to take their parenting responsibilities seriously and have a strong and genuine desire to be involved in all aspects of their children’s lives, including schooling and extracurricular activities.
The children are being supported in accordance with the obligations imposed on the parties by previous Court orders. If there has been acrimony between the parents, they have sought to avoid exposing the children to such tension.
(j)Any family violence involving the child or a member of the child’s family
There is no evidence of any such violence.
(k)Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of any such order.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is hoped that the orders made will meet the needs of these children to the end of their primary education and hopefully longer.
It is noted that there is a possibility of relocation of either or both of the parties from their current places of residence, however, there is no evidence or suggestion that this would be out of Sydney. Obviously, if this occurred, there would be a need to consider whether the current arrangements would need to be changed.
The parties will need in any event to reappraise the current arrangements as the children become older and start their secondary education. It is the hope of the Court that, having had the experience of this litigation, they will not be too ready to return and that they will call if it is necessary on the process of alternate dispute resolution if they find themselves in a disagreement which they are unable to resolve by direct negotiation.
(m)Any other fact or circumstance that the court thinks is relevant
The arrangements recommended by the expert are ones which she says inferentially relate to the current maturity of the children.
The expert was prepared to accept that things could change in a number of respects, however, it seems to the Court that these children would require any change to occur slowly so that they could benefit from consistency and gain a level of maturity which would enable them to cope with a block period away from their mother each fortnight, in a manner which would still allow them to enjoy with her a continuous period of care, including weekend care.
In the circumstances of the recommendation of the expert, the Court will make orders which are introducing further change to the children’s lives in two steps, separated by approximately one year.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has not been family violence as has been set out earlier. The section further provides in subsection (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that. The Court will for the reasons already adumbrated make an order for the husband and the wife to have equal shared parental responsibility for the children.
Section 65DAA
This section requires the Court to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
As noted above, the evidence of the expert is that these children should spend more time in one home than in the other, as this will enable them to have a base to call home and give them an accompanying stability.
Counsel for the husband made the submission that the Court was not as free perhaps as the expert to reach the conclusion that the children should have a primary place to call home. It was submitted that this is because the Full Court in Goode v Goode (2006) FLC 93-286 (“Goode”) at [64] held that the requirement in 65DAA to consider an order for equal time means that the Court must “consider positively” the making of such an order, if both the best interests and reasonable practicability conditions are met under sections 65DAA(1)(a) and 65DAA(1)(b) respectively. Counsel for the husband contended that extra days in the husband’s household would enable the children to truly come “to know and understand how their father operates within this environment and give them the opportunity to see and be part of that.”
The Court understands the benefits that will flow to these children by spending more time with their husband, however, the evidence of the expert as to the complications for children of living in two households was compelling, particularly her comment that it requires the “wholehearted commitment” of parents to overcome the challenges associated with it. Given the difficulties that these parties have shown with respect to communicating and compromising, the Court is of the view that at this time that level of wholehearted commitment is not demonstrated.
While the Court has considered positively making an order for the children to spend equal time with the husband and the wife, and while such an order would be reasonably practicable, it is not of the view that such an arrangement would be in the best interests of these children for all of the reasons discussed above.
In Goode the Full Court went on to state as follows at [65]:
5. … If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
In section 65DAA of the Act “substantial and significant time” is defined as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Under the orders that the Court proposes to make, the husband’s time with the children will include weekend time, school days, holidays and special days.
Under the proposed arrangements, the Court is satisfied that the children will be afforded substantial and significant time with the husband and the Court finds that to be in their best interests.
Item 19, which was the paid legals of the husband, was also removed from the balance sheet and the Court in arriving at that decision noted that the husband was able to utilise post separation earnings to meet his legal costs. His ability to do so has also been taken into account under this subsection.
Another item removed from the balance sheet was the tax liability of the husband, which on the estimate of the husband’s accountants is said to total $53,340. The Court notes that a potential liability of the husband for tax has been taken into account under section 75(2)(o).
The husband’s submission is that the wife should receive an adjustment of 5 per cent and that overall she should receive up to 52.5 per cent of the available non-superannuation assets.
The wife submits that she should receive an adjustment of 20 per cent in her favour and no less than 70 per cent of the parties’ net assets overall.
Conclusion on section 75(2)
For all the reasons referred to above and, in particular, in circumstances where the husband’s income and earning capacity for the foreseeable future is going to exceed the wife’s by a considerable margin and where the wife indirectly contributed to development of the husband’s earning capacity during the marriage through her adoption of the primary role in parenting the children, it is the Court’s view that an allowance must be made under the provisions of section 75(2) of the Act in favour of the wife.
That allowance should see that an adjustment of 15 per cent be made to the contribution-based entitlement in the wife’s favour.
Overall division of assets
The above determination will see the wife receive 65 per cent of the parties’ net assets and the husband receive 35 per cent.
Just and equitable
The division of assets would see the wife receive $1,439,526 worth of net assets and the husband receive $775,130 worth of net assets.
In the circumstances of this case I determine that result to be just and equitable.
Property Orders which should be made
The wife seeks to purchase the former matrimonial home.
I propose orders which will give effect to the following division.
The wife will receive:
| Assets | ($) |
| Suburb V property | 2,142,000 |
| Subaru motor vehicle | 26,300 |
| Shares – Suncorp Metway (567 @ $12.55) | 7,116 |
| NAB W#1 Savings (A/C #...057) | 246 |
| NAB W#2 Savings (A/C #...107) | 19,670 |
| Lloyds Bank (UK) | 2,948 |
| Contents, furniture & jewellery (Suburb V – W) | 20,000 |
| Aviva Superannuation | 613 |
| AGEST – Super | 114,163 |
| Total assets (including superannuation) | $2,333,056 |
| Liabilities | |
| Mortgage CBA | 129,979 |
| Joint line of credit | 97,313 |
| Share of debt to Mr and Mrs K | 95,000 |
| Debt to Ms D | 90,000 |
| Payment to husband to effect 65:35 division of assets | 481,238 |
| Total liabilities | $893,530 |
| Net assets (including superannuation) | $1,439,526 |
The husband will receive:
| Assets | ($) |
| Toyota motor vehicle | 25,600 |
| Shares – Telstra (500 @ $4.92) | 2,460 |
| Shares – IAG (264 @ $5.49) | 1,449 |
| CBA H#1 Saver | 115 |
| CBA H#2 Streamline | 1,657 |
| CBA H#3 Business | 110 |
| CBA H#4 Business saver | 12,197 |
| Contents & Furniture (Suburb L – H) | 1,500 |
| Payment from wife to effect 65:35 division of assets | 481,238 |
| First State – Super est (H) | 343,804 |
| Total assets (including superannuation) | $870,130 |
| Liabilities | |
| Share of debt to Mr and Mrs K | 95,000 |
| Total liabilities | $95,000 |
| Net assets (including superannuation) | $775,130 |
Should the wife not make the transfer of funds to the husband pursuant to Order 13 above within the given timeframe, provisions which order the parties to cause the sale of the Suburb V property shall become operative, namely those set out in Order 18(a)-(c) above.
In that event, in order to ensure that the distribution of the parties’ net assets is achieved in the ratio of 65 per cent to the wife and 35 per cent to the husband, the Court proposes orders which will give effect to the distribution set out in the tables below.
The wife will receive by way of distribution in the event and only in the event that Order 13 is not complied with by the wife:
| Assets | ($) |
| 65% of the balance of the net proceeds of sale of the V property not including sale costs but after discharge of the following liabilities by the parties: - Mortgage to CBA | E $1,121,060 |
| Subaru motor vehicle | 26,300 |
| Shares – Suncorp Metway (567 @ $12.55) | 7,116 |
| NAB W#1 Savings (A/C #...057) | 246 |
| NAB W#2 Savings (A/C #...107) | 19,670 |
| Lloyds Bank (UK) | 2,948 |
| Contents, furniture & jewellery (Suburb V – W) | 20,000 |
| Aviva Superannuation | 613 |
| AGEST – Super | 114,163 |
| Payment to wife to effect 65:35 division of assets | 217,410 |
| Total assets (including superannuation) | E $1,529,526 |
| Liabilities | |
| Debt to Ms D | 90,000 |
| Total liabilities | $90,000 |
| Net assets (including superannuation) | E $1,439,526 |
The husband will receive by way of distribution in the event and only in the event that Order (13) is not complied with by the wife:
| Assets | ($) |
| 35% of the balance of the net proceeds of sale of the V property not including sale costs but after discharge of the following liabilities by the parties: - Mortgage to CBA | E $603,648 |
| Toyota motor vehicle | 25,600 |
| Shares – Telstra (500 @ $4.92) | 2,460 |
| Shares – IAG (264 @ $5.49) | 1,449 |
| CBA H#1 Saver | 115 |
| CBA H#2 Streamline | 1,657 |
| CBA H#3 Business | 110 |
| CBA H#4 Business saver | 12,197 |
| Contents & Furniture (Suburb L – H) | 1,500 |
| First State – Super est (H) | 343,804 |
| Total assets (including superannuation) | E $992,540 |
| Liabilities | |
| Payment to wife to effect 65:35 division of assets | $217,410 |
| Total liabilities | E $217,410 |
| Net assets (including superannuation) | E $775,130 |
Spouse Maintenance
The wife seeks an order that pursuant to section 72 of the Act the husband pay to her spouse maintenance in the sum of $650 per week. The husband is presently paying to the wife $500 per week in accordance with the interim orders made in March 2011.
The Court may make a spouse maintenance order which it considers “proper” under section 74 of the Act. Section 75(1) of the Act states that in exercising jurisdiction under section 74 the Court “shall take into account only the matters referred to in subsection (2)”.
The right of a spouse to maintenance is set out in section 72 of the Act as follows:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
Section 72 operates as a threshold test in spouse maintenance applications: In the Marriage of Bevan (1995) FLC 92-600. The liability of one party to a marriage to maintain the other only arises if the other party is unable to support him or herself “adequately”, for any of the reasons set out above and having regard to any relevant matter set out in section 75(2).
The wife set out details of her weekly expenditure in Part N of her Financial Statement. Her estimated personal weekly expenditure is said to be $1,065.
There is a dispute between the parties as to the appropriateness of the wife’s expenditure and the quantum of her claims. In this case the wife has been the recipient of spouse maintenance since interim orders were made by the Court in March 2011. Since that time, she has completed her retraining as a teacher and has entered the workforce. At present she is earning a gross salary of around $47,580 based on her current part-time work arrangements.
The husband submits that the wife has an income earned through her present employment which is reasonable and which, prima facie, indicates that she is not entitled to support as envisaged by section 72 of the Act. He further submits that she has been living “quite extravagantly given her income”.
In effect the husband is saying that the standard of living to which the wife aspires with the help of maintenance paid by him is not reasonable in all the circumstances. It is the case that in the majority of marriages upon a breakdown of marriage there is a diminution of the standard of living for everyone, including any children, of the marriage. The resources which are available to maintain an intact family are unable to maintain at the same level or standard parties living separately.
In Budding & Budding [2009] FamCAFC 165 (“Budding”) the Full Court recited the principle that there is no general rule that the pre-separation standard of living of the applicant for spouse maintenance should be maintained simply because the other spouse can afford to do so. O’Ryan J made reference to a number of earlier authorities on the topic and stated as follows at [28]:
28.As to spouse maintenance applications the relevant provisions of the Act are ss 72, 74 and 75. In Brown and Brown [2005] FamCA 1165 I said:
…
286.An applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy: In the Marriage of McMahon (1977) 3 Fam LN 12; Gardiner v Gardiner (1925) 25 SR (NSW) 274, 289; Evans v Evans (supra); Brady and Brady (1978) FLC 90–513 and Malcolm and Malcolm (1977) FLC 90–220.
The Court notes that under section 75(2)(n) it may, when determining an application for spouse maintenance, have regard to the terms of any order made or proposed to be made under section 79 in relation to the property of the parties or either of them. In the property settlement proceedings between these parties, the Court made a finding that there should be an adjustment of 15 per cent in favour of the wife based on section 75(2) factors. Such adjustment will have the effect of increasing the wife’s capital substantially.
The Court also notes the following comments of the Full Court In the Marriage ofMitchell (1995) FLC 92-601 at 81,995 (also cited by O’Ryan J in Budding):
The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is drawn will depend on the circumstances of individual cases.
The Court has determined that in the circumstances of this case it will not make an order for spouse maintenance as the threshold test under section 72 has not been met, having taken into account the evidence of the parties as to their reasonable needs and resources, including the wife’s income and earning capacity from both her capital and personal exertion, and taking into account the orders which will be made for property settlement.
Whilst the wife does not present the prospect of being able ever to match the income of the husband, in reaching its conclusion the Court has been mindful of the allowance that has been made to the wife under section 75(2) in the property settlement proceedings to meet her inferior financial position. The Court is of the view that in the circumstances the wife will be able to support herself adequately, albeit at standard of living which is likely to be not as high as that which she experienced during the cohabitation.
The Court also takes into account that whilst the wife’s present earning capacity is modest, she does, on the evidence, have some capacity to earn a greater amount than she currently does, particularly were she to resume full-time employment.
Departure from Child Support
Each of the parties ask the Court to make orders pursuant to its powers under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) for departure from the administrative assessment of child support currently payable by the husband in respect of the children.
The rate of child support that husband was to pay to the wife under the initial assessment undertaken by the Child Support Agency in September 2010 was $407.18 per week for both children. In March 2011, Monahan FM (as his Honour then was) made an order for departure from the assessed rate with the effect that the husband would pay $350 per child per week.
In evidence before the Court is a notice from the Child Support Agency sent to the wife on 12 January 2013 with respect to the current child support period
(20 February 2013 – 19 May 2014). It notes that the current assessment rate of $100 per day (or $700 per week) for both of the children was set in accordance with a Court order.
Under the March 2011 orders, the husband was ordered to continue paying private health insurance for the children. It was also noted in the orders that he would, in addition, continue to meet other expenses for the children including for education, child care, occupational therapy (for the child L) and swimming lessons. The husband told the Court that he has been since that time meeting these additional expenses (the “additional expenses”).
The wife seeks that a child support departure order be made with the effect that the husband will pay $800 per child per week. The husband seeks that the child support assessment be reduced to $250 per child per week.
The wife submits that the husband’s proposed orders make no reference to the additional expenses and that there has been a history of difficulty between the parties with respect to the husband making those payments. As such, the child support sum proposed by the wife of $800 per child per week is sought on the basis that it will incorporate the additional expenses and thereby remove that source of friction between the parties.
During cross-examination, Counsel for the wife alerted the husband to the fact that in his proposed orders he seeks a reduction in child support and does not address the additional expenses that he presently pays. Following some questioning and clarification of the husband’s position, he conceded that his proposal of $250 per child per week would not be sufficient to meet the needs of the children were that payment to include the additional expenses.
The husband told the Court that it would be “reasonable” for him to pay $250 per child per week in chid support and to continue paying the additional expenses on top of that. He submits that this would be adequate to support the children and asserts that, should the Court find otherwise, the current amount that he pays is generous and has been appropriate to date.
The wife set out information about her weekly expenditure Part N of her Financial Statement. According to this evidence, the wife spends a total of $1745 per week on the children. This includes items such as “Children’s activities” ($75 per week), which includes a notation that the amount estimated is being paid in part by the husband. It also includes “Holidays” ($200 per week), “Gardening/lawnmowing” ($66 per week) and “Gifts” ($80 per week). Theses are but a few of the items listed.
The husband contends that the wife’s expenditure on the children set out in her Financial Statement is “somewhat unsafe”, considering concessions which she made in cross-examination. He also submits that she seems to be moving forward financially at the present time, which indicates to him that the amount she is receiving presently is adequate.
The Court also notes that under the parenting orders which will be made, the children will begin spending additional time with the husband in the near future. This will increase to five nights per fortnight from the end of Term 3 this year and to six nights per fortnight from the end of Term 3 in 2014.
Departure Orders
I turn now to consider the parties’ applications for departure from the administrative assessment of child support.
Before making an order for a departure from administrative assessment of child support under Part 7 Division 4 of the Assessment Act, the Court must be satisfied that it has jurisdiction to do so.
The Full Court in Saberton & Saberton [2013] FamCAFC 89 (“Saberton”) at [12] set out the steps necessary to establish the Court’s jurisdiction to make a child support departure order and stated as follows:
As is not in doubt, before an application for a departure order of the type sought by the wife can be made, the steps referred to in s 116(1)(a), (aa), (ab) or (c) of the Assessment Act must be complied with, or, having been satisfied that the provisions of s 116(1)(b) are met, a Court exercising jurisdiction under the Assessment Act may permit the application to proceed.
Section 116(1)(b) reads:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
…
(b) both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case …
The Court is satisfied that the provisions of section 116(b) have been met and that it has jurisdiction under that section to hear the wife’s application for child support departure. Before making any order for departure, however, the Court must be satisfied of certain matters set out in section 117 of the Assessment Act.
The Full Court in Saberton at [58]–[60] set out the steps that the Court is required to consider under section 117 and made the following further comments at [63]:
It is well established by authority that in determining and granting an application for an order for departure from an administrative assessment, the Court must follow the three stage approach provided by the legislation and, when a non-periodic order is sought, the two steps in accordance with Part 7 Division 5 of the Assessment Act. Reference need only be made to cases such as Gyselman & Gyselman (1992) FLC 92-279 and those which followed to establish these points.
The three-step process referred to in the above excerpt is set out clearly in section 117(1) of the Assessment Act and was also expressed by the Full Court in Gyselman & Gyselman (1992) FLC 92-279 (“Gyselman”). The three steps can be summarised as follows:
a)it must be found that “in the special circumstances of the case” one or more of the grounds for departure listed in section 117(2) exists
b)the Court must then find that it would be “just and equitable” to make a departure order in accordance with the provisions of section 117(4)
c)the Court must also find that it is “otherwise proper” to make a departure order in accordance with the provisions of sections 117(5) and (6).
It should be noted that each of the grounds set out in section 117(2) is prefaced by the terms “in the special circumstances of the case”.
In Saberton at [59] it was noted that the Court must provide reasons as to why the circumstances of the case are special which go beyond a mere recital of those words. In Gyselman, the Full Court considered what “in the special circumstance of the case” means for the purposes of section 117(2) and said as follows:
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) 90-433 at p. 77,202 in a difference context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
The Court finds that the circumstances of this case do not satisfy the “special circumstances” requirement in section 117(2) and that, therefore, no ground for departure can be made out. In reaching that conclusion, the Court has considered factors which may have been grounds for a departure order (namely the lower earning capacity of the wife as compared to that of the husband; and the special needs of the child L), however, it does not consider that those factors attract the description of being special, peculiar or out of the ordinary in the circumstances of this case.
As noted above, the husband has undertaken to continue paying the additional expenses pursuant to a notation made in the Court orders of March 2011. The Court is of the view that it would be preferable for the husband to continue to pay the additional expenses as and when they fall due and for those expenses not to be incorporated into any periodic child support payments.
The Court’s consideration of the parties’ respective applications for departure from child support has proceeded on the basis that the husband will continue to meet the additional non periodic expenses, which he has been doing since 2011. The Court intends to make a notation in the Orders to this effect.
Having not been able to satisfy the first step of the three-step process, the Court is unable to make an order for departure from the administrative assessment of child support which is currently assessed at $350 per child per week.
Non periodic orders
With respect to the additional expenses that the husband has undertaken to continue paying, neither party brought an application (or proposed that orders be made) under Part 7 Division 5 of the Assessment Act, which deals with orders for the provision of child support otherwise than in the form of periodic amounts paid to a carer.
Within Part 7 Division 5, sections 122 and 123 read as follows:
122 Cases in relation to which Division applies
This Division applies where a carer entitled to child support wants a liable parent to provide, or a liable parent wants to provide, child support for a child otherwise than in the form of periodic amounts paid to the carer entitled to child support.
123 Application for order under Division
(1)An application may be made to a court having jurisdiction under this Act for:
(a)an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b)an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
(2) An application under subsection (1):
(a)may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b)may be made by the carer entitled to child support or the liable parent.
(3)Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
…
Based on what transpired at the hearing, it appears that the husband would support the making of an order in accordance with Part 7 Division 5; however, as no such application was formally made, the Court finds that it does not have jurisdiction to make the order. Further, neither the husband nor the wife made submissions in relation to the application of relevant principles under Part 7 Division 5 of the Assessment Act. In light of this the Court will not make a formal order that the husband continue to pay such expenses.
Based on all of the above, the Court has come to the view that it is appropriate in the circumstances of this case to make a notation that the husband has undertaken to continue paying the additional expenses.
In addition, the Court proposes to make an order granting liberty to the wife to apply to the Court for an order in respect of the additional expenses should the husband cease to make those payments.
I certify that the preceding two-hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 26 August 2013.
Associate:
Date: 26 August 2013
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