KILLAM & LEVITT
[2015] FamCA 52
•6 February 2015
FAMILY COURT OF AUSTRALIA
| KILLAM & LEVITT | [2015] FamCA 52 |
| FAMILY LAW – CHILDREN – interim parenting – where one child has significant health issues – where children are young – where it is in the children’s best interests to have a well settled arrangement with limited changeovers – where parents have a conflictual relationship – where parents have poor communication skills – whether significant and substantial time is in the children’s best interests – whether the parents should have equal shared parental responsibility – consideration of s 60CC of Family Law Act 1975 – best interests of the children. FAMILY LAW – SPOUSAL MAINTENANCE – consideration of section 72 of Family Law Act 1975 – whether the wife is adequately able to support herself – application dismissed. FAMILY LAW – CHILD SUPPORT DEPARTURE – where wife seeks a departure from the assessed amount – whether there are special circumstances – where a review has been lodged in the administrative process – application dismissed. |
| Child Support (Asssessment) Act 1989 (Cth) ss 4, 116 Bagala [2009] FMCAfam 953 | |
| APPLICANT: | Mr Killam |
| RESPONDENT: | Ms Levitt |
| FILE NUMBER: | PAC | 2168 | of | 2014 |
| DATE DELIVERED: | 6 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 8 December 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Giveny |
| SOLICITOR FOR THE RESPONDENT: | G & D Lawyers |
Orders
That the husband and wife have equal shared parental responsibility for the children K born … 2006 and G born … 2009 (“the children”).
That the children live with the wife.
That the children spend time with the husband as agreed between the parties in writing with such writing to include, SMS or email communication, and in default of agreement as follows:
(a) During the children’s school terms:
(i)Each alternate weekend from after school Friday until 9:00am Sunday, during term 1 2015, commencing on the first weekend after the date of these Orders, or otherwise as agreed between the parties, and thereafter during school terms each alternate weekend commencing on the first weekend on the resumption of the school term from after school Friday until before school Monday.
(ii)Each alternate Monday preceding the children’s weekend time with the father, from after school until 7:00pm with the children to be returned to the mother having had their evening meal.
(b) During the children’s term 1, term 2 and term 3 school holidays in 2015:
(i)From 10:00am on the first Saturday of the school holiday period until 5:00pm the following Tuesday, and thereafter from 10:00am on the second Wednesday of the school holiday period until 5:00pm on the following Saturday.
That the husband have liberty to attend at such other times and at such other occasions having regard to the welfare of the children, being occasions relating to their schooling, extracurricular activities, sport, medical obligations or such other occasions significant to the welfare of the children where either or both parents are reasonably expected to be in attendance.
That the wife’s application for interim spousal maintenance be dismissed.
That the wife’s application for an interim child support departure order be dismissed.
That the husband be restrained from withdrawing funds from cash or other accounts or realising assets held by D Pty Ltd, save for the purposes of income tax payable by the company, provided that not less than 14 days prior to the payment of any such income tax, the wife is provided with a copy of the relevant income tax assessment.
That the husband and wife have liberty to apply on short notice in relation to the previous order.
Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children K, born … 2006 and G, born … 2009 and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Parramatta Office of the Legal Aid Commission of NSW at Level 5, 91 Phillip Street Parramatta NSW 2150 or DX 8293 Parramatta forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Killam & Levitt 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 PARRAMATTA |
FILE NUMBER: PAC 2168 of 2014
| Mr Killam |
Applicant
And
| Ms Levitt |
Respondent
REASONS FOR JUDGMENT
The matters for determination are the interim applications of the husband and wife in relation to parenting, interim spousal maintenance, child support and injunctive relief.
Proceedings were commenced by the applicant husband on 12 May 2014. In his application for final orders the husband sought orders as to property in relation to the sale of the former matrimonial home at I Street, Suburb A.
In his amended application filed on 2 December 2014 the husband sought similar orders in relation to property but amended his original application to seek final and interim orders in relation to parenting and the appointment of a Chapter 15 expert.
The wife in her response filed on 16 October 2014 sought final orders as to property, seeking to have the property at I Street transferred to her together with a payment by the husband to her of $500,000. The wife also sought final orders as to parenting, child support departure and spousal maintenance. In her response the wife sought interim orders as to parenting, child support departure, interim spousal maintenance and injunctive relief restraining the husband from drawing funds from bank accounts in his name or operated by him.
The husband is aged 38 and is in full-time employment as a healthcare professional. The wife is aged 42 and is employed as a healthcare professional at Hospital B.
The parties commenced cohabitation in about 2001 and married in January 2004. The parties separated in July 2013.
There are two children of the relationship, K born in 2006 and G born in July 2009.
The child K has been diagnosed as being within the autism spectrum. Both parties acknowledge that he needs structure and certainty in his life and in his routines. In 2014 he was classified as having autism spectrum disorder.
On 18 July 2014 the parties agreed to interim orders as to parenting. In summary those orders provide for the children to live with the wife but as presently operating, the children are with the husband in week one of a two weekly cycle, on Wednesdays from 12:00pm to 7:30pm, Fridays from 12:00pm to 8:00pm and from Sunday 9:00am to Monday at 8:45am at school and in week two of the cycle with the husband from Wednesday 12:00pm to 7:30pm, Thursday 12:00pm to 7:30pm and Saturday 9:00am to Sunday 9:00am.
As a consequence of the orders implemented by the parties by agreement, there are significant movements of the children between their primary household with the wife to the household of the husband.
The present interim applications of the parties were listed for hearing on 8 December 2014.
The husband’s evidence
Interim parenting arrangements as provided for in orders made on 18 July 2014 have continued.
The husband acknowledges for his part that he and the wife were involved in frequent arguments during the course of the breakdown of their relationship, yelling at each other loudly and both being aggressive. He denies the wife’s assertions as to acts of family violence perpetrated by him.
He acknowledges that he worked long hours, sometimes finishing work at 9:00pm or 10:00pm in the evening. The wife by reason of his work circumstances was the primary carer for the children, although the husband assisted with the care so as to help the wife meet her own educational and work commitments. The husband asserts that he was an engaged father, when he was available to the children.
On separation, the wife moved from the then matrimonial home with the children.
At the time of separation the husband and wife discussed post-separation arrangements for the children. At that time in July 2013 the children were respectively aged seven and four. It was the husband’s wish that he would share the care of the children post-separation on an equal basis with the wife. That in itself is a somewhat perplexing position having regard to the nature of his occupation and his working hours.
It appears that the reality of his availability for the children is reflected in the interim orders agreed to by the parties previously.
Both children are enrolled at School C at Suburb E. In 2014 the child G was finishing school at 12 noon, hence the structure of the interim parenting orders agreed to by the parties.
The husband says that in the context of the present interim orders and the children’s time with him, he is an engaged and attentive parent and attuned to the nuances of K’s condition.
The husband identifies that there is a difference in parenting style between him and the wife. He asserts that the wife adopts a rigid and prescribed routine whereas in his household there is little of that rigidity.
A joint report from Dr X senior clinical psychologist and Mr H clinical psychologist at Hospital B makes it clear that what is important for the children and particularly for the child K is consistency and clarity in relation to their care arrangements as between the parents.
The wife is assisted by a nanny in her day-to-day care of the children. The husband acknowledges difficulties in the relationship between himself and his wife, communicating with her almost exclusively via text message. He acknowledges that face-to-face communication often descends into arguments that are distressing to the children. The husband and wife have different views as to appropriate medical treatment for the children. The wife provides a gluten-free diet for K that the husband asserts is simply not indicated however he has continued that diet when K is with him to avoid the child having anxiety.
The husband resides in rental accommodation close to the children’s school. His property provides a bedroom for each of the children.
The husband asserts that he has decreased his working commitments and is making arrangements to obtain the assistance of a nanny to care for the children if the need arose due to his work commitments. He is seeking extended overnight time with the children.
At present the husband pays one half of the children’s school fees and it is his proposal that he continues to do so.
The husband opposes the wife’s application for spousal maintenance asserting to some extent that she is a spendthrift. He further says that to facilitate his time with the children, he has changed his working arrangements and thus, there has been a drop in his income.
At about the time of separation the husband, he asserts with the wife’s consent, sold shares to the value of $500,000. The wife transferred $200,000 of this money to her own account and the balance in part was applied by the husband to his personal tax liability including capital gains tax arising from the sale of shares. As at 30 November 2014, there was approximately $148,000 remaining.
The husband opposes the relief sought by the wife by way of spousal maintenance and child support departure.
He proposes interim parenting orders that provide for the children’s time with him to be in summary as follows (Exh D) ;
a)In week one from Wednesday after school until Thursday before school and then from Friday after school to the following Monday before school and in week 2 from Wednesday after school until Friday morning before school;
b)One half of the mid-year school holidays; and
c)That changeovers that did not take place at school be facilitated by the parent into whose care the children are going collecting the children from the other parent.
The husband also proffers to agree without admissions to an order that he be restrained from withdrawing funds from accounts conducted by D Pty Ltd other than in the ordinary course of business and in payment of tax.
The husband’s financial circumstances
The husband in conducting his healthcare practice does so utilising a service entity, the J Trust (“the service entity”) to which he pays 40 per cent of his gross fees. That trust in turn makes distributions to the Killam Family Trust (“F Trust”). The company D Pty Ltd is a potential beneficiary of the F Trust. It is common ground that the husband is the sole director and shareholder of D Pty Ltd.
The husband’s income comprises of his practice income and investment income. The husband’s business income after expenses for the year to 30 June 2014 was $398,257 before tax. The husband’s service entity is otherwise met by payments relating to practice rent, staff, superannuation, insurances and other business operating expenses including professional insurance.
The service entity for the year ended 30 June 2014 made a profit and a portion of the profit was distributed to the F Trust and in turn $55,258 was distributed to D Pty Ltd. As at 30 June 2014, the service entity owed the F Trust $137,001. Funds distributed by the F Trust to D Pty Ltd in reality represent a splitting of the husband’s income via the trust. D Pty Ltd is obliged to pay income tax, payable on distributions to it and income tax arising as a consequence of investment income earned by it. The husband is willing to agree that he not deal with funds in the account except in the ordinary course of business and in the payment of tax. D Pty Ltd is in the business of investment and as such will accrue a primary obligation for tax as a consequence of its activities. The wife complains that as at 30 June 2014 the company had a credit balance of $170,000, as a consequence of either trust distributions in the financial years 2013 and 2014, or the company’s investment activities. Pending final determination it is appropriate having regard to the husband’s income from other sources, that monies held by D Pty Ltd or distributed to that company in the future remain in the account subject to D Pty Ltd being able to meet its normal tax obligations.
The husband’s primary personal weekly expenses are rent $1,200 in relation to the four-bedroom rental home that was previously the matrimonial residence, his contribution to school fees of about $250, child support $274 and somewhat perplexingly estimated child-minding $350 per week. These expenses total $2,074 per week leaving a balance from his weekly after-tax income of about $2,700 for him to apply to his personal and living expenses.
The husband’s child support liability arises pursuant to an assessment dated 23 October 2014 that operates for the period 9 October 2014 to 8 January 2016. The assessment provides a weekly rate of child support of $273.41. The result of the assessment is presently the subject of a review application by the wife and the results of that review application are not yet determined. It is common ground that in the event of either party being aggrieved by the result of the review application they may appeal same to the Social Security Appeals Tribunal (“the SSAT”).
Taxation benefits accrue in relation to distributions by the F Trust to D Pty Ltd by reason of the relevant marginal tax rate.
The wife asserts that the husband’s taxable income for the year ended 30 June 2013 was $912,187 with his income including assessed capital gains tax income of $80,181. The wife further asserts that the husband’s service entity distributed to D Pty Ltd $154,111 as at 30 June 2013. The wife further complains that the husband has not complied with requests for disclosure in relation to his financial records touching upon his income.
The husband otherwise derives investment income from interest on bank account holdings, share dividends and partnership income from a Suburb J property owned jointly by the husband and wife.
The husband estimates that his total taxable income from all sources for the 2014 year will be $399,226 before tax. The husband has paid $157,484 by way of PAYG instalments relating to the 2014 tax year and overall would be entitled to a refund of about $4,000. His after tax income on a weekly basis is thus approximately $4,750 per week.
As to the husband’s historical income circumstances, the wife relied upon the evidence of Mr L, chartered accountant. It is noted that the husband commenced effectively self-employment in 2011. In the financial year ended 30 June 2012 his after tax income was $438,926. In the financial year ended 30 June 2013, which appears to be the husband’s first full year in self-employment, his after tax income from all sources was $606,937. As to the financial year ended 30 June 2014, the husband’s after tax income, reports Mr L was $274,270 or $5,274 per week.
The wife’s evidence
The wife says that during the period of cohabitation she was the primary carer of the children and of necessity, the parties had the assistance of a nanny.
In January 2010 the parties and the children moved to Brisbane as a consequence of the wife’s work commitments. In 2011 the family returned to reside in Sydney and at that time the husband began as a consultant and working in private practice.
For a period of three months in 2012 the wife undertook an observership at Hospital M in the United States of America. The wife lived in the United States for three months with the children and the children’s nanny who accompanied them. The husband visited the wife and children for the last three weeks of their stay in the United States.
From 2012 until separation the husband was working long hours and would leave home at about 6:30am and return in the evenings between 6:00pm and midnight. The wife says it was not unusual for the children to go three to five nights without seeing the father. The father spent time with the children on his days off.
The wife has been primarily responsible for arranging interventions in relation to the child K and arranging therapy for him. She says she kept the husband informed.
After separation the wife moved to rented premises being a small two bedroom home. The property rented by the wife is in close proximity to the former matrimonial home that remains occupied by the husband.
The wife employs a nanny who has been in her employment for four years. The nanny assists the wife in the care of the children when the wife is working. The wife also has the support of her parents who live in close proximity and have been closely involved in the children’s lives.
The wife emphasises in her evidence the necessity for routine for the child K and exhibits to her affidavit a child development unit comprehensive review of the child. As does the husband, the wife exhibits some concern in relation to the difficulties experienced by K in toilet training and the management of this issue has presented a complex problem for the parties to deal with. The wife says that her gluten and dairy-free diet for the child K that she commenced in 2012 appears to have had some beneficial effect for the child.
The wife alleges the husband assaulted her on 14 October 2012 picking her up around the arms and pushing her out of the room, squeezing her so hard so as to cause pain. This incident was seen by the child K who wrote “no” on a piece of paper and held it over his father’s mouth. The wife alleges other incidents of violence where the husband has grabbed hold of her and pushed her. The wife otherwise alleges that she has been subject to verbal abuse by the husband.
The wife acknowledges that in June 2013 she transferred $200,000 into her own name as alleged by the husband. As at 4 December 2014 the balance remaining in this account of the wife was about $50,000, she having expended the balance of the funds on day to day living costs for herself and the children and school fees.
Following separation the husband attended at the wife’s new home. The wife alleges that the husband was agitated and angry and punched a hole in the screen door. The incident occurred in the presence of the children. The police were called and they attended at the wife’s home. On 11 October 2013 an interim apprehended violence order was made. The interim order continued for six months and at the end of that period the wife sought no further extension and the order was discharged.
The wife acknowledges that she and the husband have different parenting styles, with the husband evidencing a more aggressive parenting style towards the children. The parties attended for family therapy in early 2014 but the husband after two sessions discontinued his attendances. The wife asserts that after separation the husband has exhibited intemperate and inappropriate behaviour in the presence of the children.
Notwithstanding, the wife asserts that she and the husband have been able to be civil on occasions and get on in front of the children. She is hopeful that the relationship between she and the husband will settle down but acknowledges that changeovers in relation to the children’s care present difficulties.
The wife complains that changeovers as they are presently structured means that she and the husband have significant contact. She finds this difficult and there have been a number of disagreements in front of the children causing the children distress. She further complains that the complicated structure of the current arrangements and constant changeovers are difficult for the children to understand. She asserts that the child K would benefit significantly from a simplified structure with the children having a primary home but still spending significant time with the husband.
The wife sees a more settled arrangement would facilitate changeovers at the children’s school where available, with the husband otherwise picking up or returning the children to the wife’s home.
In the wife’s outline of case document (Exh B) she seeks in summary the following interim orders:
a)That orders 1, 2 and 3 made on 18 July 2014 be discharged;
b)That the children live with the wife;
c)That the children spend time with the husband as agreed and in default of agreement, in one week from after school Friday to 6:00pm Sunday and in the next week from after school Thursday until the beginning of school on Friday, together with periods during the mid-year school holidays;
d)That changeovers occur at the children’s school and otherwise the husband is to collect and deliver the children to the wife;
e)That there be a departure from the present child support assessment fixing the weekly rate of periodic child support payable by the husband for the two children at $2,000 per week and that there be an order for non-periodic child support for the husband to pay 100 per cent of the children’s school fees for their continuing attendance at School C;
f)That there be a lump sum payment of child support of $19,629;
g)That there be an order for interim spousal maintenance of $1,200 per week payable by the husband to the wife, that the husband be restrained from permitting or causing the total sum of money in all bank accounts in his name or in the name of any business owned by him to reduce below current balances as at 10:00am on 8 December 2014.
The wife’s financial circumstances
The wife is in salaried employment at Hospital B on an annual salary of $231,296 per annum being $4,448 per week before tax. The wife pays income tax of $1,560 per week leaving her with an after-tax salary of $2,888 per week.
The wife pays to the children’s nanny an average of about $600 per week. Otherwise her significant expense is the rent for the two bedroom home she currently lives in of $770 per week, although she proposes to move to a home where it is to be inferred the children would have their own bedrooms in the Suburb E area, at a rental of about $1,200 per week, that is commensurate with the rent currently paid by the husband. Allowing for prospective rent of about $1,000 per week then after meeting these two primary expenses totalling $1,600 per week, the wife would have a balance from her after-tax income of $1,288 per week available.
In Part N of her financial statement sworn on 14 October 2014, the wife asserts her own living expenses to be in the sum of $1,136 per week. As asserted expenses that spring to attention at least in the context of this interim application are, clothing and shoes $180 per week, entertainment and hobbies $135 per week, cleaning $77 per week and hairdressing and toiletries $174 per week. No evidence is adduced by the wife to support these figures.
Doing the best the court can on this interim application especially where the court is not assisted by cross-examination, the wife’s reasonable expenses over and above the cost of her nanny and rent are to be estimated in the sum of $750 per week.
Otherwise the wife’s fixed expenses (Part G of her financial statement) are insurance: life and income protection of $103 per week, health insurance $60 per week, professional indemnity insurance $19 per week, car insurance and registration $42 per week, totalling $205 per week.
Thus, overall the wife’s reasonable expenses are $955 per week to be met from her available after-tax income of $1,288 referred to above. This would leave her $333 per week to apply to the needs of the children.
Disregarding school fees and her nanny expenses totalling $1,060 the wife asserts remaining weekly expenses for the children of $736 per week. Two of the components of this figure are holidays $100 and children’s activities $152.
Doing the best the court can in the context of an interim hearing the children’s reasonable expenses excluding school fees and nanny expenses referred to above are assessed at $650 per week. The children’s school fees are $26,000 per annum or about $500 per week thus making the expenses for the children a total of $1,150.
As at 14 October 2014 the wife had available cash at bank totalling approximately $72,000. Some of those funds have been depleted in payment of living and other expenses since that time.
Spouse maintenance
Section 72 of the Family Law Act (Cth) (“the Act”) sets out the relevant provisions in relation to the right to spouse maintenance. Section 72 provides that 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 a 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) of the Act.
It is readily apparent that from the analysis of the wife’s income and expenses undertaken above that she has not demonstrated that she is unable to support herself adequately.
Accordingly, the wife’s application for spousal maintenance is to be dismissed.
Child Support
As the Full Court said in Harris and Ellis [2011] FamCAFC 90:
20. There are two ways to seek a departure from an administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) (“the Act”). The Child Support Registrar can make a departure determination under Part 6A (on the application of the payer or the payee, or on the Registrar’s own motion). Alternatively, on the application of the payer or the payee, certain courts can make a departure order pursuant to Division 4 of Part 7.
21. The Registrar may make a departure determination, and a court may make a departure order, if satisfied that one of the grounds for departure referred to in s 117(2) of the Act exist. The orders that may be made by a court on hearing an application for a departure order are set out in s 118 of the Act.
22. The procedure for seeking a departure determination from the Registrar under Part 6A of the Act is comparatively simple. The Registrar can, however, refuse to make a determination if the issues are “too complex”, in which case the Registrar may recommend that an application be made to a court for a departure order. This is the effect of s 98E (and see also the similar provision in s 98R which concerns an application for a departure determination initiated on the Registrar’s own motion).
23. There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
24. The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
……
26. Following the commencement of the amendments made by the Reform Act, the limitations on making an application for a departure order are to be found in s 116 of the Act, which is expressed in the following terms (my emphasis added):
116 Application for order under Division
(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:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged;
(iii) the Registrar has disallowed the objection; or
(aa) all of the following apply:
(i) a decision has been made in respect of the administrative assessment;
(ii) an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab) the [Social Security Appeals Tribunal] has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(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; or
(c) in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1). (notes omitted)
The wife relies on s 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) for jurisdiction in relation to her departure application.
The objects of the Child Support (Assessment) Act 1989 are set out in s 4, and in particular, the relevant sections are ss (1) and (2)(c):
s 4 Objects of Act
(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
...
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings...
As was observed by Riethmuller FM (as he then was) in Bagala [2009] FMCAfam 953:
Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments.
The first was the introduction of the departure process under part 6A of the Act, allowing for administrative departures from child support assessments.
The second change was providing for objection rights following Part 6A decisions, and the third significant change provided for review by the SSAT.
All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship of applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well-developed informal administrative system has been developed.
The expression ''special circumstances'' was considered by the Full Court in Gyselman (1992) FLC 92-279 at p 79,065. The Court said:
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize 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 [(1990) FLC 92-131] (p 77,897), Kay J ... said that:
‘‘Special circumstances'' were ''facts peculiar to the particular case which set it apart from other cases''.
In Sheahan (1993) FLC 92-375 the Full Court said at p 79,884 that the ''relevant facts of the particular case must be considered to determine whether they constitute special circumstances which ... if not taken into account, would result in injustice or undue hardship to any person''.
The financial circumstances of the parties are set out above. Essentially they are both salary earners with all sources of income readily identifiable. The husband concedes in these proceedings his obligation to pay at least half of the children’s school fees.
It is to be inferred that in the context of the review application of the presently existing child support assessment all of the financial information that has been placed before this court and the husband’s willingness to meet one half of the private school fees for the children will be considered by the reviewing officer in reaching a determination.
In all of the circumstances and concomitant with the objects of the child support legislation it is appropriate that the administrative procedure follow its statutory pathway in particular in the context of this interim application where the evidence of the parties and their respective financial circumstances cannot be tested by cross examination.
There are no special circumstances in this matter that give rise to the court being satisfied that it is in the interests of both the husband and wife for the court to entertain the present departure application nor would they suffer undue hardship or injustice if they were left to pursue the pending administrative review process.
Accordingly, the interim application for child support departure will be dismissed.
Parenting
In Marvel & Marvel (No. 2) [2010] FamCAFC 101; the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In Goode (supra); the Full Court, comprised of (Bryant CJ, Finn and Boland JJ), discussed the application of the presumption in section 61DA to interim proceedings at [56]:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
Best interests of the children
The additional considerations: s 60CC(3)
The Court has had regard to each of the additional considerations set out in s 60CC(3) of the Act. The relevant considerations are as follows:
(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 are aged eight and five. The eldest child has significant health issues and the youngest child is of a tender age. In such circumstances their wishes, if any, would be afforded little weight.
(b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child):
Whilst the husband asserts a close relationship with the children, the family circumstances in the period leading up to separation demonstrate that the wife was the one primarily engaged in the children’s lives and facilitating their care.
(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child:
A consideration of the relevance of this factor awaits a full determination where the Court can make positive findings as to fact in relation to the allegations each of the parties make against the other. The wife it appears has been primarily engaged with the health issues of the child K post separation. Regrettably the parties’ poor communication skills and conflictual relationship post-separation has overshadowed this consideration.
(ca) The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child:
The child support issue is referred to above. It will be resolved by administrative review. The father’s financial assistance post separation having regard to his income and capacity to earn has been modest at best.
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living:
The likely change in the children’s circumstances arises from the parties’ respective applications to vary the existing consent interim orders. The report from Hospital B highlights the need for a settled care arrangement for the children, particularly K, and consistent parenting strategies from both parents. Both parties agree that they have different approaches. This is not conducive to the best interests of the child K. A primary care arrangement where K is more settled seems to be indicated.
The joint report from Dr N and Dr O calls for an emphasis on consistent, unambiguous, explicit collaboration across two settings for predicted routines, preparation of changes, consistency of communication, social expectation and self-regulation abilities and demands particularly in managing anxiety and frustration. The report continues to note the child’s reactions and anxiety can still be extreme, especially with unpredicted events and changes in routine, even small changes in routine causing major anxiety the night before and tantrums about going to school, anxious about the impending change. Such changes, note the writers, between his care in two different setting is understandably a major challenge in K’s adaptive and reasoning abilities.
(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:
This is at best a minor consideration as both parties seem to have flexibility in work and the ability to put in place assistive care arrangements for the children.
(f) The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual need:
An assessment of this factor awaits a consideration where the evidence of both parties can be tested. The wife seems the more engaged parent on a day to day basis, particularly in relation to K’s medical and other interventions. Otherwise, the observations made above are pertinent to this consideration.
(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:
This factor is not a significant consideration, save to note that the children are still of tender years and that the child K has significant health issues that present ongoing and significant challenges to both parents.
(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 right;
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
A full assessment as to each of the parties in relation to this factor awaits final hearing and the Court’s ability to make determinations as to fact. However, it is clear that the parties remain in a significantly conflicted relationship and that it is imperative that they engage in post-separation counselling to address that issue.
(j) Any family violence involving the child or a member of the child's family;
Both parties make allegations one against the other. Once again, the truth as to the circumstances of the parties’ relationship awaits a final determination. The absence of any subjective material, particularly documents that may have been produced by the NSW Police Service on subpoena, does not assist in terms of assessing the veracity of each party’s allegations.
(k) If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The wife obtained an interim apprehended violence order against the husband and the order appears to have been operative for about six months and thereafter not pursued by the wife and it has now lapsed.
(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;
These are interim proceedings involving parents in significant conflict. In such a circumstance, the Court is unable to make orders in the context of these proceedings that are least likely to lead to the institution of further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant.
There are no such other facts or circumstances relevant.
The primary considerations: s 60CC(2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC (2A) provides:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
As observed above, it is important for the elder child K to have well-settled arrangements as a consequence of his health circumstances. It is important that those arrangements see him in the care of his primary carer, the wife, and that such arrangement see as little disruption as possible. Such a circumstance will render his relationship with the wife as meaningful for him and see him less exposed to any difficulties that he is presented with as a consequence of the presently existing changeover arrangements. The child’s time with the husband should be consistent and as best as can be facilitated, for a significant period, having regard to the ages of both of the children and K’s circumstances.
Doing the best that the Court can in the context of the limited objective evidence available on interim hearing, the ongoing consideration of the children’s meaningful relationship with both parents would thus see the children living with the wife and with the husband for a settled weekend period and intervening time on an evening basis only.
Section 60CC(2)(b) – need to protect
Whilst the husband raises some protective concerns in relation to the children’s time with the wife, his evidence is neither conclusive of, nor supportive of, any foundation for such concerns.
The wife acknowledges that the husband presents as a good father to the children and she has no protective concerns for the children whilst in the husband’s care.
The parties each give evidence of conflict, both physical and verbal, between them. In circumstances where it is alleged the children have been exposed to such conflict, both parties need to be mindful of their conduct in the presence of the children and their need to seek external assistance in post-separation parenting skills and appropriate communication skills. In this regard, the Court proposes to appoint an Independent Children’s Lawyer as a consequence of the issues canvassed above and the parties may be guided as to an appropriate therapeutic intervention by the Independent Children’s Lawyer.
The presumption
The Court is not satisfied that there are circumstances which would cause the presumption as to equal shared parental responsibility not applying. Indeed, in the circumstances of this matter, particularly in relation to the child K, it is important for both of the parents to feel empowered and engaged in relation to major decisions to be made.
Section 65DAA
In light of there being an order for equal shared parental responsibility, the Court is required to give consideration to whether the children spending equal time with each of the parents is in the best interests of the children and reasonably practicable, and if so, to consider making an order for such equal time.
Having regard to the best interest considerations set out above and for the reasons touched upon above, the Court is not satisfied that it is in the best interests of the children for there to be, at present, an equal time arrangement. In that circumstance the Court does not need to consider whether such an arrangement is practicable.
The Court is then required to consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and reasonably practicable.
Substantial and significant time is defined to include time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays, and time that allows the parent to be involved in the children’s daily routine and occasions and events that are of particular significance to the children and/or parents.
For the reasons discussed above, it is not in the best interests of the children for there, at this stage, to be an order for the husband to spend substantial and significant time with the children, in the strict sense of the definition. The orders proposed include weekend time; time that does not fall on a weekend or holidays and such time will be expanded slightly during school holidays. The husband’s application for substantial and significant time with the children will be considered in the context of a final determination. Accordingly, the Court is not required to consider whether such an arrangement would be in the circumstances practicable.
Orders as to parenting will be made as set out at the forefront of these reasons.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 6 February 2015.
Legal Associate:
Date: 6 February 2015
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Family Law
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