Kempin and Kempin
[2015] FamCAFC 24
•23 February 2015
FAMILY COURT OF AUSTRALIA
| KEMPIN & KEMPIN | [2015] FamCAFC 24 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother unilaterally relocated the children to Brisbane from Perth – Where the father appealed an interim order allowing the children to remain in Brisbane pending trial – The trial Magistrate considered the benefit to the children of having a meaningful relationship with the father – The trial Magistrate did not err in finding that the father could afford to travel to Brisbane occasionally – The trial Magistrate did not err in assessing the mother’s financial position – Appeal dismissed – Appellant father ordered to pay costs, but not on an indemnity basis. |
| Family Law Act 1975 (Cth), s 60CC(2)(a), s 75(3), s 94AAA(3) |
| AMS v AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407 Jurchenko & Foster (2014) FLC 93-598 McCall & Clark (2009) FLC 93-405 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Kempin |
| RESPONDENT: | Ms Kempin |
| FILE NUMBER: | PTW | 3443 | of | 2014 |
| APPEAL NUMBER: | WA | 23 | of | 2014 |
| DATE DELIVERED: | 23 February 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 11 February 2015 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 21 August 2014 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Moser |
| SOLICITOR FOR THE APPELLANT: | Dwyer Durack |
| COUNSEL FOR THE RESPONDENT: | Mr Berry SC |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
By consent, the application in an appeal filed on 28 January 2015 and the response filed on 9 February 2015 be allowed.
The appeal filed on 18 September 2014 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed, and in default of agreement as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kempin & Kempin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 23 of 2014
File Number: PTW 3443 of 2014
| Mr Kempin |
Appellant
And
| Ms Kempin |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Kempin (“the father”) has appealed parenting orders made in the Magistrates Court of Western Australia by Family Law Magistrate Sutherland on 21 August 2014. The appeal is opposed by Ms Kempin (“the mother”).
The issue is whether the Magistrate erred in not requiring the mother to return the parties’ two children to Perth, pending the final hearing of the dispute about whether the mother and children should be permitted to live in Brisbane.
I dealt with the appeal by delegation from the Chief Justice under s 94AAA(3) of the Family Law Act1975 (Cth) (“the Act”).
Background
The father is 33 years of age, and is employed as a pilot. He lives in the parties’ former joint residence in C, a suburb of Perth.
The mother is 27 years of age and is not in paid employment. She currently lives with her parents in Brisbane.
The parties were married in 2006 and have two children: M, who was nearly five years of age at the time of the interim hearing; and L, who was two.
The father commenced proceedings in June 2014 after the mother unilaterally removed the children from Western Australia.
On 23 June 2014, Magistrate Sutherland made an ex parte order that the mother return the children to Perth, but the order was made without prejudice to the mother’s right to seek an interim relocation order. The mother then sought such an order.
On 11 July 2014, Magistrate Sutherland stayed the order of 23 June 2014. The matter came before her Honour for an interim hearing on 18 August 2014, which was dealt with on the affidavit evidence and submissions from counsel.
Her Honour delivered judgment on 21 August 2014, and made the orders that are the subject of the present appeal.
The orders appealed
At the hearing on 18 August 2014, the parties were ordered to attend a conference in December 2014 about financial issues. An interim consent order was also made for the father and mother to have equal parental responsibility.
The orders made on 21 August 2014, which are the subject of the appeal, provided that:
a)the order made on 23 June 2014 be discharged;
b)until further order, the children live with the mother on the basis that they could reside in Brisbane;
c)until further order, the father spend time with the children provided that he gives 14 days’ notice, the visits do not exceed seven days, and the handovers occur in Brisbane; and
d)until further order, the father have telephone communication with the children each evening.
The further evidence applications
On 28 January 2015, the mother filed an application in an appeal seeking to introduce evidence that the father spent time with the children every month between September 2014 and January 2015, for periods ranging from 3 to 9 days.
On 9 February 2015, the father filed a response in which he consented to the further evidence being received, provided he was permitted to rely upon the evidence in his supporting affidavit about how he funded the trips and the difficulties associated with him continuing to make such visits.
Senior counsel for the mother consented to the father’s proposal, although he submitted I should be sceptical of the father’s assertion about his inability to continue to visit the children. In making this submission, he drew attention to the fact that a similar claim had been made at the hearing before the Magistrate, yet the father had been able to visit the children regularly.
I will make orders by consent as proposed and, to the extent appropriate, take account of the further evidence in determining the appeal.
The Grounds of Appeal
The original grounds of appeal were amended on 12 December 2014.
Ground 1 – failure to address the benefit of a meaningful relationship
By this ground it was asserted that:
The Learned Magistrate erred in law in failing to address the benefit to the children of having meaningful relationship with both parents, and in particular the Husband, as a primary consideration set out in Section 60CC(2)(a) of the Family Law Act 1975 in a prospective manner as mandated by McCall v Clark (2009) FLC 93-405.
The Learned Magistrate:
a)ought to have found that the children would not be able to maintain, let alone foster a meaningful relationship and therefore benefit from it if they remained living in Brisbane; and consequently
b) ought to have lifted the stay on the order for the return of the children to Perth.
In the course of his submissions, counsel for the father accepted that it could not be said that the Magistrate had failed to address the benefit to the children of having a meaningful relationship with both parents. Her Honour addressed this issue at [32] to [35] of her reasons where she said:
32.The parties are in dispute as to the care arrangements for the children prior to separation. The father maintained that both parties were the primary carers of the children. The father acknowledged that he worked full time as a pilot and part time as a gardener, however maintained that given the flexibility of his work arrangements, he was also able to devote considerable time to the children.
33.On the other hand the mother maintained that she was the primary carer. It is common ground that the father worked full time throughout the parties’ relationship and that the mother has not worked (apart from a very short period) since the birth of the children. …
34.On the basis of the available evidence I am satisfied that the father’s work commitments meant that the mother has been the parent primarily responsible for looking after the children from the time of their births. Given the very young ages of the children and their likely stages of development I am also satisfied that the mother is likely to be the children’s primary attachment figure. However, on the available evidence I am satisfied that the father also played an active role in caring for the children when he was not otherwise engaged in his work activities.
35.Neither the father nor the mother dispute and I accept that the children have close and loving relationships with both parents. The children will benefit from having a meaningful relationship with both parents.
At [47], her Honour discussed the likely effect on the children’s relationship with the father if they remained in Brisbane:
On the mother’s primary proposal, the children would continue to live with her in Brisbane. Although the mother maintained that the change in arrangements will have little impact on the children as she will continue to be their primary carer and she will facilitate them spending time with the father in Queensland, on the available evidence I am not satisfied that this would be the case. In my view the practical difficulties facing the father in spending time with the children if he remained in Perth and the mother and children remained in Brisbane will inevitably detrimentally impact on his relationship with the children to some extent.
At [48], her Honour went on to discuss the effect on the children’s contact with the father if they returned to Perth:
On the mother’s secondary proposal, she and the children will return to Perth. Both parties agreed that such an arrangement would enable the children to maintain regular contact with both their parents (although the parties disagreed as to the precise arrangements). However there are significant practical (financial) difficulties with this arrangement which I identify later in these reasons.
At [50], her Honour returned to the question of the impact on the children’s relationship with the father if they remained in Brisbane:
The mother maintained that if the children are permitted to remain living in Brisbane, then she will facilitate them spending time with and having telephone communications with the father. The parties agreed that in such event, the father will spend time with the children in Queensland for up to seven days at a time and have regular telephone communications. The father is in full time employment. I am satisfied that he has the financial wherewithal to afford to occasionally travel to Brisbane to spend time with the children. However, I am also satisfied that given his work commitments and the costs of travel, the father is unlikely to be able to spend time with the children on a regular basis. Given the young ages of the children, the father’s ability to maintain a meaningful relationship with them may gradually be detrimentally affected.
At [67] to [71], her Honour set out five reasons why it was in the children’s interests to continue to live in Brisbane pending the trial. The final reason was as follows:
71.Finally, I readily acknowledge that whilst the children continue to live in Brisbane and the father continues to live in Perth, it is unlikely that they will be able to spend frequent and regular time with each other and the children’s relationship with their father is likely to suffer as a result. Nevertheless, the parties agreed that in such circumstances the father would spend time with the children for up to seven days at a time (on giving prior notice to the mother) and otherwise have daily telephone communications with the children.
It will be seen from these passages that her Honour was at pains to consider the effect of the orders on the children’s relationship with the father. Nevertheless, counsel for the father argued that her Honour had not addressed the issue in “any sufficient way”, which he argued was required, bearing in mind the facts of the case and, in particular, the very young age of L.
Counsel for the father drew attention to what he suggested was prevarication on the part of the Magistrate concerning the extent of the impact on the children’s relationship with the father if they remained in Brisbane. In particular, he noted that the findings about the likely negative impact were expressed much more forcefully at [47] and [71] than they were at [50]. While counsel’s linguistic analysis was correct, he was also right to concede that his submission could constitute the “overly critical, or pernickety” approach which Kirby J warned against in AMS v AIF (1999) 199 CLR 160 at 211.
Counsel for the father was also critical of her Honour for taking into account at [71] the fact that the parties had agreed the father could spend time with the children for up to seven days. He submitted that this agreement had been made “pretty much … on the run” during argument, and that taking it into account was tantamount to a court taking account of the fact that a mother would not leave her children behind if she was not permitted to relocate.
The finding concerning the “agreement” about the seven-day visits arose from the following passage in the transcript, where counsel for the father said (transcript, 18 August 2014, p 25):
JONES, MR: [Mr Kempin’s] instructions in that regard, ma’am, are that he thinks practically and logistically it’s going to be very difficult for him to get over to see the children frequently. I think it’s the mother’s proposal, ma’am, that [Mr Kempin] be able to spend a block of seven days with the children, provided he gives appropriate notice.
It doesn’t seem as though there is any particular restriction with that proposal about – that would require that to be once every two or three months or so. So given the logistical and practical difficulties identified, it may well be that orders as proposed by the mother would be appropriate for the court to consider.
I do not accept that this apparent agreement to the mother’s proposal was made “on the run”. The proposal was contained in the mother’s response filed on 8 July 2014, and continued to be her position thereafter. The father therefore had adequate time to consider it, and his counsel then invited her Honour to consider the proposal when framing her orders.
Furthermore, her Honour’s reference to the agreement came immediately after her finding that “whilst the children continue to live in Brisbane and the father continues to live in Perth, it is unlikely that they will be able to spend frequent and regular time with each other”. It therefore seems her Honour was doing no more than recognising that while the father’s visits were unlikely to be frequent, when they did occur, they could be for up to seven days. In my view, it was not only proper for the Magistrate to take this into account, but it would have constituted error not to have done so.
Her Honour’s approach cannot be fairly compared with that of the trial judge in U v U (2002) 211 CLR 238, which was the subject of the criticism by Gaudron J in the High Court, to which counsel for the father referred in advancing this part of his submission. At no point did the Magistrate treat the agreement about the seven-day visits as constituting an “alternative proposal” on the part of the father, as occurred in U v U. On the contrary, the Magistrate properly identified the proposal as coming from the mother (at [64]).
Ground 1 also asserts that the Magistrate failed to adopt a “prospective approach” when considering the benefit to the children of having a meaningful relationship with the father. Such an approach was found to be the preferred approach in McCall & Clark (2009) FLC 93-405 at 83,476. However, nothing advanced on behalf of the father persuaded me that her Honour adopted anything other than a “prospective approach”.
I also do not accept the submission that her Honour failed to make a finding concerning the current nature of L’s relationship with the father, since that finding was made at [35].
The remaining element of Ground 1 is that her Honour did not treat the issue of the children’s relationship with the father as a “primary” consideration, which is required by s 60CC(2)(a) of the Act. However, I accept the submission of senior counsel for the mother that much of this part of the complaint proceeded on the premise that there is an obligation to make orders that will maintain a meaningful relationship between both parents and the children. This is not the case, as the Full Court recently affirmed in Jurchenko & Foster (2014) FLC 93-598, when citing with approval the following proposition from Champness & Hanson (2009) FLC 93-407 at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (original emphasis)
Counsel for the father, properly in my view, did not seek to rely on the fact that the Magistrate failed to acknowledge in her reasons that the benefit to the children of having a meaningful relationship with both parents must be treated as a “primary” consideration. Her Honour did, however, at [13] to [15], provide a brief summary of the “applicable law”, which included the following:
13.The parties’ respective parenting applications are made pursuant to Part VII of the Family Law Act 1975. In deciding whether to make a particular parenting order, section 60CA directs me to regard the best interests of the children as the paramount consideration. Section 60CC sets out how I determine what is in the children’s best interests.
14.For proceedings commenced on or after 7 June 2012 section 60CC(2A) provides that in applying the primary considerations, I am to give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The definitions of abuse and family violence have also been considerably widened.
15.I am required to consider the appropriate “live with” arrangements. Accordingly pursuant to section 61DA I am required to consider whether to apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children. …
It can be readily inferred from [14] that her Honour was well aware of the dichotomy in s 60CC(2) between “primary” and “additional” considerations. Furthermore, the question of the children’s relationship with both parents was the first matter her Honour considered when discussing the s 60CC(2) factors. In my view, nothing turns on the failure of the Magistrate to state that this factor was a “primary” consideration.
Examination of the reasons shows that her Honour accepted there would be substantial benefit to the children in having a meaningful relationship with both parents, and she accepted this would be easier to achieve if the mother was required to live in Perth. However, there were other factors she was required to take into account. Having carefully weighed them, her Honour decided it would be in the interests of the children to remain in Brisbane pending the trial.
As counsel for the father conceded, this was a discretionary decision. I find no error in the exercise of the discretion and therefore no merit in this ground.
Before passing from this topic, I should also record that I was informed that no request has been made for an expedited trial, despite the following statement by her Honour in the final paragraph of her reasons:
73.The mother sought an order that the parenting proceedings be stayed pending the parties’ attendance at family dispute resolution counselling. However I am not satisfied that such an order should be made. Consent orders have already been made for the parties to attend a Conciliation Conference shortly in relation to financial issues. In my view, if the parties are unable to reach agreement in relation to financial issues at that time, then it would be appropriate to allow the parties to proceed to a final hearing on all issues as expeditiously as possible.
The parties attended a conciliation conference in December 2014, but the Registrar was seemingly not asked to make an order for expedition. I can appreciate the father’s concern to have the issue resolved promptly, especially if he is right in asserting he will not be able to visit the children as regularly in future as he has until now. But there is nothing to prevent him seeking an order for expedition, and I suggested at the hearing that he might do so. Senior counsel for the mother advised that the mother would not oppose expedition, provided all issues could be dealt with in the one hearing.
Ground 2 – error in assessing father’s ability to fund regular travel
By this ground it was asserted:
The Learned Magistrate erred in fact in finding that the Husband would be able to finance regular travel to Brisbane to spend time with the children.
The Learned Magistrate ought to have concluded that the financial circumstances of the Husband would prevent him from being able to travel to Brisbane to spend time with the children as the Wife proposed in terms of Section 60CC(3)(e) of the Family Law Act 1975.
Counsel for the father conceded there was no evidence before the Magistrate of the costs of travel associated with the father visiting the children, although he properly submitted that the further evidence rectified this deficiency. However, the additional evidence revealed that, by one means or another, the father has been able to meet the costs of travel, albeit his capacity to do so in future is in doubt, as is his ability to obtain the required time off work.
Counsel for the father also conceded that Ground 2 did not accurately reflect the reasons, since the Magistrate did not find that the father would be able to finance “regular” travel to Brisbane. At [50], her Honour said only that she was
satisfied that [the father] has the financial wherewithal to afford to occasionally travel to Brisbane to spend time with the children. However, I am also satisfied that given his work commitments and the costs of travel, the father is unlikely to be able to spend time with the children on a regular basis. (emphasis added)
Similarly, at [71], her Honour found it was unlikely the children would be able to spend “frequent and regular time” with the father.
Counsel for the father conceded that the strength of Ground 2 was “somewhat weakened” by these clear findings. However, he then sought to rely upon those findings as support for the error he claimed was identified in Ground 1.
I have already concluded there is no merit in Ground 1. In any event, the further evidence establishes that the father has, in fact, been able to spend time with the children on five separate occasions since the making of the orders.
There is therefore no merit in this ground.
Ground 3 – error in assessing mother’s financial position
This ground is directed to the findings at [56] and [70] where her Honour said:
56.Having regard to my discussion and findings at paragraphs 18 to 30 inclusive of these reasons, I am not satisfied that the mother could fund her accommodation and transport costs in Perth in the event that the father did not make a substantial financial contribution towards these costs. I am also not satisfied that the father can afford to make the financial contribution he proposed to make, let alone the financial contributions sought by the mother.
…
70.Fourthly, I am satisfied that there are significant practical financial difficulties in relation to the mother and the children being required to return to Perth. In particular, I am not satisfied that the mother can financially afford to meet her and the children’s accommodation and transportation costs in Perth unless she receives significant financial support from the father. However, I am also not satisfied that the father can financially afford to meet these costs. On the other hand, I am satisfied that if the mother and the children continue to live in Brisbane on an interim basis, then their accommodation and other costs are substantially reduced as they can continue to live with the maternal grandparents rent free.
As her Honour referred back to the findings at [18] to [30], I will also recite them, but in doing so, it is vital to appreciate that her Honour was also determining an application for interim spousal maintenance:
The mother’s current financial position
18.The mother is 26 years old. It is common ground that the mother has no formal tertiary or trade qualifications and no recent work experience. She has been primarily engaged as a full-time homemaker and parent since the births of the children, apart from some short term temporary work in the human resources field.
19.In her financial statement the mother deposed that she received Centrelink entitlements totalling $777 per week. Section 75 (3) of the Act requires me to disregard any entitlement of the applicant to an income tested pension, allowance or benefit. Accordingly I will disregard the income the mother received from this source. Although the father was assessed to pay child support for the two children, the mother has not yet received any payments. In any event I propose to disregard any income received by the mother from child-support on the basis that I will also disregard the mother’s expenses in relation to the children. Accordingly I am satisfied that the mother’s current income is $0 per week.
20.In her financial statement the mother set out that her total expenses comprised her Part N expenses, of which $760 related to the expenses for the children and $1,132 related to the expenses for the mother. The mother estimated that her future rental costs in Queensland would be approximately $500 per week. However currently the mother does have any rental costs in Brisbane as she and the children live with the maternal grandparents. Further on the mother’s case, if she were required to return to Perth, then she sought exclusive occupation of the [C] property. On the other hand, the father opposed the mother’s application for exclusive occupation and proposed that he pay up to $320 per week towards the mother’s rental costs for six months. The father made no significant criticisms of the mother’s claimed expenses and I otherwise accept that they are reasonable in the circumstances.
21.In conclusion I am satisfied that the mother’s current income is $0 per week and her current necessary expenses are $632 per week (if her accommodation continues to be provided by her parents or if she has exclusive occupation of the [C] property) and $1,132 per week (if she is meeting her own accommodation costs).
22.The mother and children can continue to live rent free with the maternal grandparents in Brisbane on an interim basis. If the mother returns to Perth with the children, then they are likely to experience considerable hardship if they are not permitted to resume occupation of the [C] property. The mother has no extended family members in Perth with whom she and the children could stay. She has very limited financial means from which to fund the costs of setting up a new home and meet the ongoing rental payments.
The father’s current financial position
23.The father is 33 years old. He works full-time as a pilot and also works part-time as a gardener. In his financial statement the father deposed that his total income from all sources was $1,718 per week. It was not in dispute and I accept that the father is fully exercising his income earning capacity.
24.In his financial statement the father deposed that his total expenses were $1,716 per week as follows:
Item $ Amount Income tax $288 Superannuation contributions to M L C $138 Mortgage payments $370 Rates and taxes $25 Health insurance premiums $11 Personal loan repayments $92 Child support payments $242 Part N expenses $550 Total $1,716 …
26.I also observe that the parties are in dispute as to the amount of child support that the father has been assessed to pay. The father deposed that it was $242 per week, whereas the mother deposed it was $260 per week. In the absence of any corroborative evidence, I am unable to make any findings in relation to the matter.
27.In conclusion I am satisfied that the father’s total income from all sources is $1,718 per week and that the father’s total necessary commitments are $1,703 per week (based on his evidence as to child support) or $1,721 per week (based on the mother’s evidence as to child support). I also observe that these expenses make no allowance for the father to obtain his own rental accommodation in the event that the mother and children resumed occupation of the [C] property and also makes no allowance for the father’s increased transportation costs in the event that the mother takes over the use of the Toyota … motor vehicle.
28.Although the father’s own case was that he would pay the amount of up to $320 per week towards the mother’s rental costs for six months, on the basis of the father’s own evidence I am not satisfied that in fact he can afford to make such payments.
29.If the mother and children do resume occupation of the [C] property then the father is also likely to experience considerable hardship from being excluded from the property. Although the father has some relatives living in Perth there is no evidence to suggest that he could make arrangements to stay with those relatives. The father has a significant income (comparative to the mother) but he also has significant commitments, including the mortgage payments and child support payments. Accordingly the father also has very limited financial means from which to fund the costs of setting up a new home and meet the ongoing rental payments.
30.…
Ground 3 challenges the Magistrate’s approach to the question of the mother’s financial position in these terms:
The Learned Magistrate erred in fact [in finding] that the Wife would suffer significant financial difficulties if she had to return to live in Perth with the children.
the Learned Magistrate ought to have found that the Wife would be in better financial circumstances if she returned to live in Perth, whether at the former matrimonial home or otherwise and hence the Learned Magistrate fell into error by taking into account the Wife’s financial circumstances as a factor in favour of the children remaining in Brisbane.
Counsel for the father submitted in his written outline that the Magistrate had erroneously:
…conflated spousal maintenance and the exclusion of income-tested benefits for the purposes of Section 75(3) of the Family Law Act 1975 with parenting matters by assuming that the Wife had no income at all and would be better off at her parents’ place in Brisbane where she had free accommodation.
I have some difficulty seeing how this complaint could properly arise under the rubric of Ground 3, which by its terms is directed to a finding of fact. The argument advanced here raises a question of law and therefore probably should have been a stand-alone ground if it was being pressed. I nevertheless accept that her Honour erred if she found she was bound by s 75(3) of the Act in assessing the parties’ financial positions for the purposes of the parenting dispute, since s 75(3) applies only to proceedings for spousal maintenance.
However, as I understood his final position, counsel for the father conceded that her Honour had applied s 75(3) only when considering the maintenance dispute, albeit I accept that the opening sentence of [56] of the reasons left room for doubt on this issue. Senior counsel for the mother did not advance any submissions on the topic, presumably because of the concession of counsel for the father, or because the ground as drafted addressed only the factual issue.
Counsel for the father’s real complaint about the financial issue was that her Honour had not performed the required mathematical exercise to determine whether the wife would be able to support herself and the children if she lived in Perth. He submitted that if the exercise had been undertaken, her Honour would have found that the mother would have $207 per week more than she needed to maintain herself if she was living in Perth.
Counsel for the father submitted that the Magistrate improperly disregarded the child support the mother was entitled to receive from the father, whilst including the child support when considering the father’s position. However, this submission seems to be based on a misunderstanding of [19] of the reasons, where her Honour said she would disregard any income received by the mother by way of child support. Her Honour immediately went on to explain that she was adopting this course because she was also disregarding the mother’s expenses in relation to the children. This is a clear indication that her Honour was concerned at that point in her reasons only with the claim for spousal maintenance, and not with the parenting issue. In those circumstances, it was proper for her Honour to take into account the father’s child support obligation because those payments had to be considered in determining whether the father could afford to pay spousal maintenance.
Read in this context, her Honour’s finding at [21] that the mother’s necessary expenses were $632 per week (if she had accommodation provided) or $1,132 per week (if she had to provide her own accommodation) related only to the mother’s personal expenses, and did not include the costs of the children. On the other hand, the calculation made by counsel for the father took into account $777 per week social security, $242 per week child support, and $320 per week spousal maintenance, but overlooked the expenses for the children.
As her Honour recorded at [20], the mother estimated the children’s expenses at $760 per week (with no allowance for a portion of the notional rent). Her Honour also recorded that the father had “made no significant criticisms of the mother’s claimed expenses” and therefore found them to be reasonable.
Thus, on the findings made by the Magistrate, and not challenged on appeal, the mother could not afford to support herself if she returned to live in Perth, even if the father met his child support obligation and paid $320 per week spousal maintenance.
As to the likelihood of the child support being paid, it should be observed that her Honour found at [19] that the mother had not yet received any payments. It might also be noted that the father’s argument proceeded on an unstated assumption that if the mother returned to Perth she would be entitled to the same Centrelink payment as she was receiving in Brisbane, even though the father’s proposal for her return was based on him paying spousal maintenance of $320 per week. A payment of maintenance at that level would probably reduce the mother’s pension entitlements, as I understand the law. However, that issue was not the subject of submissions, and I therefore pass over it.
As to the likelihood of the $320 per week being paid, counsel for the father drew attention to what he said was the mother’s acceptance of the father’s offer to pay spousal maintenance at that rate. However, consideration of the evidence reveals that the father’s proposal was made on the basis that:
a)the money would have to come from his parents, who were only able to provide “up to $320 per week for up to six months” (affidavit of the father filed 7 August 2014 at [106] and affidavit of Mrs K filed 8 August 2014 at [36]); and
b)the $320 per week would be put toward a lease on a property of two bedrooms and one bathroom, which the father would arrange (affidavit of the husband filed 7 August 2014 at [105]).
As pointed out by senior counsel for the mother in his submissions before me:
·The mother’s agreement to accept $320 per week by way of spousal maintenance was on the basis that she wished to reside in the C home rent-free (transcript, 18 August 2014, p 19).
·The father said he would obtain a rental property for the mother within a reasonable distance of the home in C suburb. The document annexed to his affidavit that purported to show the availability of such accommodation referred to many properties within the price range; however, none of them were in the vicinity of C suburb.
·The father’s parents, who were to be the source of the $320 per week, had not provided an enforceable undertaking to make the payment.
·The father claimed he could not afford the $320 per week, and his parents could not commit to make the payments for more than six months. Thus, there was no guarantee of what the position would be if the trial were not concluded within six months, noting that the father’s Form 1B sought that the duration of the spousal maintenance payments not exceed six months.
Counsel for the father correctly observed that at no point in her reasons did the Magistrate refer to the offer made by the father’s mother in her affidavit of 8 August 2014 to provide the support the father needed to allow him to pay $320 per week toward the mother’s rental expense. Her Honour merely found that the evidence indicated the father could not afford to pay spousal maintenance and dismissed the application for maintenance on that basis.
The impression I gleaned was that her Honour might have been unaware of the offer of financial support contained in one brief paragraph in the father’s affidavit and one brief paragraph of the affidavit of the father’s mother. Her Honour had before her a large quantity of affidavit evidence, and I was not taken to any part of the transcript to show that the offer from the father’s parents was drawn to her attention. My own examination of the transcript reveals no reference to it. On the contrary, remarks made by counsel for the father would have led her Honour to believe it was the father who was to provide the funds (transcript, 18 August 2014, p 12).
In any event, even if her Honour had referred to the proposal from the father’s mother to provide financial support, little weight could have been placed on it for all the reasons stated by senior counsel for the mother. Furthermore, if her Honour had accepted that payments would be made, the mother could still not meet what her Honour found would be her reasonable costs of living in Perth.
Counsel for the father submitted in his written outline that the Magistrate had not addressed the question of the mother’s capacity to work, and he drew attention to the fact that the mother had previously worked. No submissions were made at the hearing before me in response to the mother’s written submission that the evidence before the Court was that the mother had full-time responsibility for the two children, and was not in paid employment. In my view, the mother’s capacity to work while caring for two young children pending the trial was so problematic that it was not incumbent upon the Magistrate to discuss it. However, her Honour did in fact touch on the issue when dealing with the claim for spousal maintenance. At [72], the Magistrate expressed her satisfaction that the mother could not support herself adequately “given her responsibilities to care for [M] and [L], her lack of any work qualification and recent work experience”.
In his oral argument, counsel for the father also submitted that it was erroneous for the Magistrate to have assumed that the mother would have rent-free accommodation in her parent’s home, given there was no evidence this would be the case. In my view, this argument strayed well beyond the ground of appeal. In any event, I see no error in the approach of the Magistrate, given:
a)the mother had been living rent-free in her parents’ home since the separation;
b)there was no evidence to suggest the parents were anything other than supportive of the mother; and
c)there was no suggestion the parents had any intention of commencing to charge rent.
I conclude it was open to the Magistrate to find that the mother would be better off in Brisbane where she had the security of accommodation with her family, compared to the father’s proposal for her to live in Perth in a (yet to be found) property that could be funded only if the father’s parents met their promise to provide funds and only for a period of up to six months.
For these reasons there is no merit in this ground.
The outcome and costs
As I have found no merit in any of the grounds, the appeal will be dismissed.
In accordance with the usual practice, I took costs submissions at the hearing. Senior counsel for the mother sought costs on an indemnity basis if the appeal was dismissed. Counsel for the father opposed any order for costs.
The father’s appeal was unsuccessful and I therefore consider he should meet the mother’s costs. However, nothing put to me persuaded me there was any basis for indemnity costs. Although I found no merit in the father’s complaints, coherent arguments were presented in support of the appeal, and there was nothing to suggest it was brought for an improper purpose. It must be remembered that the proceedings arose as a result of the mother’s unilateral removal of the children from the city in which they had lived their entire lives, and it was understandable the father would be greatly concerned about the impact of the move on his relationship with two young children.
The costs should be agreed or assessed on the usual basis.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 23 February 2015.
Associate:
Date: 23 February 2015
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