Klein & Wright - [2007] FMCAfam 360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KLEIN & WRIGHT

[2007] FMCAfam 360

CHILD SUPPORT – Overseas maintenance agreement – application to discharge or vary.

Family Law Act 1975, ss.60CC, 65D, 66B, 66S, 66S(2), 110(1) and 110(2)
Family Law Regulations1984, ss.24A, 25, 36, 36(1)(b), 3692) and 36(4)
Child Support (Registration and Collection)(Overseas – Related Maintenance Obligations) Regulations 2000, ss.5, 11(1), 12 and 18
Child Support (Registration and Collection) Act 1988

Lutkze (1979) 5 FamLR 553
Vakil (1997) FLC 92-743
Cosgrove & Cosgrove (1996) FLC 92-700
Line (1997) FLC 92-729

Applicant:

MR KLEIN

Respondent:

MS WRIGHT

File number:

BRM 5779 of 2006

Judgment of:

Slack FM

Hearing date:

14 February 2007

Date of last submission:

1 March 2007

Delivered at:

Brisbane

Delivered on:

1 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

WHD Lawyers

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Christine Vachon Solicitor

ORDERS

That all previous Orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children.
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with him.
That except as otherwise ordered, the children D born in 1990 and G born in 1993 are to live with the Father.

Time with the other parent

That the children are to spend time with (and/or live) and/or communicate with the Mother as agreed between the parents and if they fail to agree then as follows:
(a)on the condition that the Mother is in Australia and residing within 20 kilometres of the school that the children attend then each alternate fortnight (with the intention that the children live with their Mother for 14 days and then with their Father for 14 days);
(b)in the event that the Mother is not in Australia, then the above order is suspended.

Collection and delivery

That except as otherwise ordered, the Mother shall collect the children from and return the children to school when they are to spend time with her.
That if the children are not attending school, the children shall be collected by the Mother or her nominee from the Father or his nominee at the commencement of her time with the children at the home of the Father in South East Queensland.
That if the children are not attending school, the children shall be collected by the Father or his nominee from the Mother or her nominee at the conclusion of her time with the children at the home of the Mother in South East Queensland.
That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.

Specific Issues

That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That the Mother and Father be restrained and an injunction be granted restraining the Mother and Father from removing the children from the Commonwealth of Australia without the consent of the other parent or further Order of the Court and subject to the following orders until the children have completed their High School education.
That the passports for the children be retained by Christine Vachon, Solicitor for the Mother upon her undertaking to hold those passports in accordance with these Orders. If she is unwilling to give the undertaking then the passports shall be deposited with the Registry Manager of the Federal Magistrates Court at Brisbane pursuant to s.67ZD of the Family Law Act.
That the Mother be permitted to remove the children from Australia subject to the following conditions:
(a)The trips occur during times that do not interfere with the time the children spend with the Father under these Orders and do not interfere with the children’s attendance at school.
(b)The Registry Manager must hold any Australian passport deposited in safe custody until the Mother deposits the sum of $25,000 into the Trust Account of WHD Lawyers.
(c)Upon the Registry Manager receiving written confirmation from WHD Lawyers of the receipt of the said $25,000 the passports can be released to the Mother.
(d)If the Mother pays the $25,000, pursuant to Order 16(b), any Pace Alert for the children be suspended for the period that the Mother travels overseas with the children.
(e)The Mother deposit with the Registry Manager of this Court at Brisbane the passport released to her for the children within 48 hours of her return to Australia.
(f)If the Mother fails to return to Australia on the date stipulated by her without reasonable excuse, WHD Lawyers are authorised to release the money held in the Trust Account to the Father.
(g)The monies be held in an Interest Bearing Account for the Mother pending the safe return of the children to the Commonwealth of Australia, but subject to any further Order of the Court.
(h)The parties sign all such documents as are necessary to enable the Trustees to invest the monies in an Interest Bearing Account.
(i)The mother shall:
(i)provide the Father with a copy of her itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for her and the children and the address at which they will predominantly be based (provided that she will not be required to provide details of every address at which the children will stay) at least 28 days prior to scheduled departure;
(ii)provide to the Father a copy of the return air tickets for the children;
(iii)during the trip, arrange for the children to telephone the other parent on at least one occasion in each week.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(d)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.
(e)If the Father fails to choose, then the Mother may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in Order 17.
That the child support payable by the Father to the Mother pursuant to the maintenance liability registered 21 April 2006 be varied to provide that the Father pay to the Mother the sum of $600 per week for the time that the children lived with the Mother from the date of registration of the registered maintenance liability (provided that any payments made by the Father to the Mother under any Order of the Court shall be credited to the Father for the amount owing and arising under this Order).

IT IS NOTED that publication of this judgment under the pseudonym Klein & Wright is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 5779 of 2006

MR KLEIN

Applicant

And

MS WRIGHT

Respondent

REASONS FOR JUDGMENT

The applicant father seeks an order pursuant to Regulation 36(2) of the Family Law Regulations 1984, that the Court “discharge the registered maintenance liability based on Orders of the Superior Court of California dated 13 November 2000”.
Further he applies for orders that any arrears which “have accrued from the operative date of registration of the order, being 21 April 2006, be discharged”.
The respondent mother seeks that the father’s application to discharge the registered maintenance liability be dismissed or in the alternative, that the father pay to her:
a)$800 per week by way of child maintenance in respect of the children;
b)the private school fees for the children; and
c)medical and insurance premiums for the children.

Background facts

I have accepted and taken into account the following facts.
The father is now 47 years (born in 1960).
The mother is 44 years (born in 1963).
The parties were born in the USA and lived there until the early 1990s. The parties married in June 1985 and separated in June 1999.
There are three children of their marriage – Z born in 1987, D born in 1990 and G born in 1993.
The parties lived in Italy from the early 1990s until their separation.
For a significant part of the marriage the father worked for B.
At separation the children lived with the mother in Italy. Notwithstanding that the parties were resident in Italy, they both appeared in the Superior Court of California upon the mother’s petition for dissolution of marriage and then in relation to child custody, visitation, child support arrears, spousal support and community property matters.
The parties, inter alia, consented to an order dated 13 November 2000 requiring the father to pay US$2,200 per month for child support commencing on 1 August 2000 and continuing until the first of the following events:
a)When each respective child attains age of 19 or has attained age 18 and either is not a full time high school student or self supporting.
b)When each respective child dies.
c)When each respective child enters into a valid marriage, is on active duty with any of the armed forces of the United States of America, receives a declaration of emancipation under California law, or otherwise becomes emancipated by leaving home and becoming self supporting.
d)When the petitioner dies and the respondent assumes custody of the children.
e)Further Court Order.
The father was required to pay spousal support in the sum of $1,400 per month for one year up to 31 July 2001 and then the sum of $1,000 per month from 1 August 2001 until 1 March 2006.
In March 2001, the father moved to Australia with his employment and the children remained with the mother in Italy.
In June 2002, the mother agreed that the children would live with their father in Australia and attend private schools.
On 17 March 2003 orders styled “Stipulation and Order Re: Modification of Custody, Visitation, Child Support and Spousal Support” were made. Relevantly, the order provided for shared physical custody of approximately equality, a stipulation that the children continue to reside in Australia, a stipulation as to visitation for the year 2003 and two other stipulations dealing with notice and Christmas.
Specifically there was an order with respect to child support as follows:
“Child support and spousal support shall remain the same as previously ordered on 6 November 2000. Each party hereby waives any arrears, if any, on past due child and spousal support.”
The order also provided that the parties were to meet and confer in January 2004 “to re-evaluate the custodial parenting plan stipulated to herein”. The order provided that if the custodial time for the father was in excess of 60 percent then the child support paid to the mother “shall be reviewed and calculated according to the defacto time sharing had with each parent”.
The father is now entitled to permanently reside in Australia. He has remarried and has relocated to South East Queensland.
The mother has been able to stay in Australia on a tourist visa which has meant that she has been required to leave the country on a regular basis.
The mother’s tourist visa expired in January 2005. She left the country in March 2005 (having overstayed her visa). She had great difficulty obtaining another visa and remained outside of Australia between March 2005 and January 2006.
The mother lodged the orders obtained in California in November 2000 and March 2003 for registration by the Child Support Agency in accordance with Regulation 12 of the Child Support (Registration and Collection) (Overseas – Related Maintenance Obligations) Regulations 2000.
The father objected to the decision to accept the mother’s application to register but his objection was unsuccessful.
Notwithstanding the registration of the child support order, the father had ceased to pay same and as at 12 February 2007, was in arrears to the extent of $27,132 (being arrears accrued since registration).
Prior to the hearing in this matter and without notice to the mother or her solicitors, the father made an application for a Child Support Assessment.

The law

At common law, an order for maintenance made overseas cannot be enforced as a final order by an Australian Court. So, too, it could not be varied or discharged. However, international enforcement of maintenance orders is governed by treaty and laws of mutual recognition.
Section 110(2) of the Family Law Act provides relevantly for the power to make regulations in respect of registration and enforcement of maintenance orders made in “reciprocating jurisdictions”. The Family Law Regulations 1984 (as amended) contains such regulations as do the Child Support (Registration and Collection) (Overseas – Related Maintenance Obligations) Regulations 2000 (hereafter referred to as “the Overseas Regulations”).
Section 110(1) of the Act defines “maintenance order” as relevantly “an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, other than an order or determination of the kind referred to in paragraph (c)”. It further defines “reciprocating jurisdiction” to mean “a country or part of a country outside Australia declared by the regulations to be a reciprocating jurisdiction for the purposes of this section”.
Section 110(2) of the Act not only provides for the making of regulations for the registration and enforcement of maintenance orders made by Courts of reciprocating jurisdictions, but goes on, in sub-paragraph (c) of that sub-section, to provide for:
“The making of orders … for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section …”
Regulation 25 of the Family Law Regulations1984 (as amended) (hereafter referred to as “FLR”) provides:
“Each of the jurisdictions specified in Schedule 2 is declared to be a reciprocating jurisdiction for the purposes of s 110 of the Act (elsewhere defined to mean the Family Law Act).”
Schedule 2, consequent to amendments to the regulations made in May 2000, includes the United States of America.
The Overseas Regulations affected a significant change in respect of the registration and enforcement of maintenance orders and agreements made overseas. In simple terms, those regulations permitted child maintenance obligations to be registered with the Child Support Registrar and to be enforced pursuant to the Child Support (Registration and Collection) Act as if they were child support obligations. The relevant legislative provisions follow.
Regulation 5 of the Overseas Regulations defines “overseas maintenance liability” to mean a liability that arises under, relevantly, a maintenance order made by a judicial authority of a reciprocating jurisdiction and it goes on to define “registrable maintenance liability” to include “a liability that is a registrable maintenance liability under Regulation 11”.
Regulation 24A of the FLR defines “registered maintenance liability” as meaning:
“A registrable maintenance liability under sub-regulation 11(1) or (2) or paragraph 11(3)(a) of the Overseas Obligations Regulations that is registered under those regulations.”
Regulation 11(1) of the Overseas Regulations provides as follows:
“A liability is a registrable maintenance liability if:
(a)it is a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child; and
(b)it is an overseas maintenance liability.”
Regulation 12 of the Overseas Regulations provides:
“1. If the Registrar receives an application for registration of a liability that is a registrable maintenance liability under Regulation 11, the Registrar must, within 90 days of receipt of the application, register the liability by entering particulars of the liability in the Child Support Register.”
The Overseas Regulations permit child support ordered to be paid pursuant to an overseas order in a reciprocating jurisdiction to be collected by the Child Support Agency as if it was a child support payment. The centrepiece of the regulations to that effect is Regulation 16 which provides:
“If a registrable maintenance liability mentioned in Regulation 11 is registered by the Registrar, an amount payable under the maintenance assessment or order agreement, or the agency reimbursement liability, is a debt to the Commonwealth by the payer in accordance with the particulars of the liability entered in that Child Support Register.”
Regulation 36 of the Family Law Regulations provides as follows:
“36(1)   This regulation applies to:
(a)an overseas maintenance order or agreement registered in a Court before 1 July 2000; and
(b)an overseas entry liability or registered maintenance liability.”
(2) Application may be made to a Court having jurisdiction under the Act (i.e. the Family Law Act) for an order discharging, suspending or reviving or varying an order, agreement or liability to which this regulation applies.
(3)     An application may be made by:
(a)the person for whose benefit the order or agreement was made or for whose benefit the liability was created; or
(b)the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability.
(4)     The law to be applied to determination of an application is the law in force in Australia under the Act.”

There is no issue in this matter that the California order is a registered maintenance liability.
The father's application is under Regulation 36(1)(b) and 36(2) of the Family Law Regulations 1984.
The father seeks to discharge the registered maintenance liability brought about by the registration by the mother of the order of the Superior Court of California, Orange County of 13 November 2000.
The Child Support Registrar has certified the amount which would be owing under the registrable maintenance liability from 21 April 2006. I am not to decide in this application whether any arrears owing prior to 21 April 2006 are in fact owing.
The applicable law under Regulation 36(4) is the law in force in Australia under the Family Law Act and in particular s.66S – modification of child maintenance orders.
An order made under Regulation 36 in relation to a registrable maintenance liability is a final order as to the effect of that liability where the United States is the reciprocal jurisdiction (see Regulation 38).
The effect of this Court's order as to the future liability of the applicant is limited by Regulation 18 of the Child Support (Registration and Collection) (Overseas Related Maintenance Obligations) Regulations 2000. The effect of that regulation, the liability being a registrable maintenance liability under Regulation 11(1) of those Regulations is that the liability ceases to have effect if the Registrar makes a child support assessment which is registered under the Child Support (Registration and Collection) Act 1988 and the parties and the children in relation to the assessment are the same as the parties and the children under the registered maintenance liability. In this matter the applicant has made an application for child support assessment.
Thus, on the father's application I am to consider making orders under s.66S(2) that the registered maintenance liability be discharged from the date on which it is deemed to have become enforceable, namely

21 April 2006, until the issue of the child support assessment (which I understand has already occurred).
As to what constitutes just cause under s.66S, the observations of Lindenmayer J in the marriage of Lutzke (1979) 5 FamLR 553 which were adopted by the Full Court in the marriage of Vakil (1997) FLC 92-743, sets out the considerations that should be taken into account. His Honour said:
The Act is silent as to what may constitute just cause for the discharge of an order. In my opinion, however, the words "just cause" are not used in any broad general sense nor are they intended to import any abstract notions of justice, "palm tree" or otherwise, into the determination of applications for discharge. In my opinion, those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a "cause" for the discharge of an existing maintenance order will be a just cause only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said it is "right" or "proper" that the order should be discharged.
Notwithstanding that those observations related to spouse maintenance, in my view they are relevant to applications to vary orders for child maintenance.
The mother contends that the jurisdiction to "discharge, suspend, revive or vary" a registered maintenance liability is prospective, that is, there is no jurisdiction to discharge arrears under the orders.
Although the regulation is expressed in the present tense, I consider that the Court retains the discretion to make a retrospective order (Cosgrove and Cosgrove (1996) FLC 92-700 @83,390).
Ultimately I am persuaded that there is a just cause for varying the registered maintenance liability in this matter.
My reasons for reaching that conclusion are as follows:
a)the original agreement/order entered into on 13 November 2000 was entered into when the father's income was $390,000 per annum (the US$ equivalent of $A714,628). The applicant earned $218,750 in the last financial year, hence his income is substantially reduced;
b)the children at the time the agreement was entered into were living with their mother for the majority of their time. The agreement provided for the maintenance of three children, Z, D and G and the husband's employer paid private school fees;
c)at that time all the parties were residing in Italy.
d)it is not in dispute that in the relevant period, namely throughout 2006 and 2007, the children have lived the majority of their time with their father. It is also not contested that Z has graduated from high school at the end of 2004 and has been self-supporting since November 2004. It is also not in dispute that the father has re-partnered and has an obligation to support his current wife. The father, rather than his employer, now meets the children's school fees and they are $346 per week or $18,000 per annum.
e)the parties themselves by their agreement in 2003 saw the need to review the child support arrangements with respect to the children. Much has changed since the original orders were made in 2000 including, in particular, the living arrangements that then existed for the children.
For those reasons, I do consider that there is a just cause for reviewing the orders that were made and the provision for the children's maintenance.
The father submits that there is just cause for discharging the original order insofar as it gave rise to the registered maintenance liability. Indeed, the father argues that if the order is discharged then it is functus officio and that the Court cannot create a new maintenance liability.
He argues that the Court should not approach the matter by attempting to vary the order, because it is difficult "if not impossible for this Court to sensibly vary the order without effectively rewriting it and such a rewriting would be more in the nature of a work of imaginative fiction than an evidence-based analysis and reconstruction of the order in terms that might be susceptible to variation".
I don't agree with that submission because I am asked to assess what contribution the father should have made to the maintenance of the children in a defined period, namely, between 21 April 2006 and the issue of the children support assessment (which I assume has occurred).
The starting point for the consideration of variation of orders is s.66B which sets out the objects of the division and in particular:
a) that children have their proper needs met from a reasonable and adequate share in the income-earning capacity, property and financial resources of both their parents, and
b)the parents share equitably in the support of their children.
Section 66H sets out the approach to be taken in proceedings for child maintenance orders (see also Mee and Ferguson1986 FLC 91-716).
In assessing the financial support necessary for the maintenance of two children, I need to consider their proper needs having regard to the matter contained in s.66J(2).
The father contends that the reasonable needs of the children are $605 per week (which includes education expenses of $346). The father submits that his assessment of the weekly needs of the children is appropriate because the children have lived with him in the relevant period and he is the one who has been in a better position to assess the real and actual ongoing needs of the children.
The mother's assessment of the actual expenses for the children is set out in para 28 of her affidavit filed on 9 February 2007. Given that I am considering the child support retrospectively, I consider that I should take into account the expenses the mother says were incurred during the relevant period. Those expenses were $644 per week for the children (which does not include educational expenses but does include rental expenses of $195 per week).
The father contends that the mother's estimates are extravagant because she claims an entertainment allowance of $50 a week, a phone allowance of $50 a week, petrol allowance of $60 a week and provision of $20 a week personal expenses. There are legitimate debates between parents about what should be spent on entertainment allowances for children and neither position could be said to be unreasonable especially for teenage children.
The mother, also as part of her claim for the children's proper expenses, claims an amount of $195 a week for half of the rental costs of the home that she rents in South East Queensland which she rents for the time that she is in Australia to be with the children.
At this point in time it is important to note that as a result of the parties' decision for the children to live with their father in Australia, the mother's ability to have contact with the children has been restricted because it has been dependant upon her capacity to afford to travel to Australia from where she lives in Italy firstly, and secondly, because of limitations in her being able to obtain visas and permission to stay for any significant periods of time.
The parties agree that it was in the interests of the children that they spend significant amounts of time with each of their parents; indeed, they agree at the moment that it is in the interests of the children that when the parents are in a similar locale, that the children should spend equal time with them. In line with that philosophy, during the time that the mother was in Australia during 2006 and 2007 the children spent equal time with each of their parents.
Unfortunately these proceedings seem to have created a great degree of animosity between the parties. Until these proceedings it seems that the parents were able to negotiate successfully arrangements for the children; for example, the mother and father were able to agree that in 2004 it was in the interests of the children for them to live with their father in Australia and complete their education in Australia because of difficulties in the mother's ability to afford their education in Italy. In the past the parties seem to have been able to work very cooperatively in relation to the children's wellbeing.
It seems on the evidence that the parties do see that it is important for the children to maintain a relationship with both of their parents. They do see that it is important then that the parents be in the general locale of the children and they do see that it is important for the children to spend equal time with each parent when they are close by. That occurred over the course of 2006 and 2007 when the mother was in Australia. In those circumstances I do consider that it was reasonable for the mother to rent her own accommodation for the children for the time that she was in Australia and it is not an unreasonable expense, in my view, for her to claim that as part of the children's reasonable needs. In the circumstances she was merely providing what the parents considered was appropriate for the children for their arrangements during 2006.
Ultimately, taking account of what both parents say about the needs of the children and paring back some of the mother’s claims for entertainment, phone and personal expenses, I have assessed the reasonable weekly expenses for the children when they were in their mother’s care (including rental expenses of $195 per week) to be $600 per week.
The next issue is for me to consider how the parents should share equitably in the support of the children. The father submits that the mother should bear responsibility for some of the costs associated with the children. He says that the equitable share in relation to the costs of the children are that the mother should bear the costs of the children when with her and that he should bear the costs of the children when with him. In making that submission he submits, and it is acknowledged, that he meets all of the school fees and a number of other expenses that form part of the overall costs of the children that are not taken into account in the mother's side of the ledger.
In other words, the father submits that he, even on that analysis, bears significantly the greater cost of the care of the children; he submits that the mother has been less than frank with the Court about her financial circumstances; that she has described herself in various other forums as someone who has the capacity to earn income; that she is a qualified landscaper and that she does have property and resources upon which she should be called upon to contribute towards the needs of the children and that is best met by her being responsible for those needs when the children are with her.
The father also indicates that he does not seek any refund of the moneys that have been paid under orders that were made on an interim basis in relation to this matter by both myself and Wilson FM. In a sense the father contends that the ledger should be seen as being squared off with a discharge of the order.
It is the mother's case that she had no capacity to earn income in the time that she has been in Australia; that it was in the interests of the children that she spend time with them in Australia; that it was a condition of her visa requirements that she not be in employment in Australia, and that limited her capacity to earn income when in Australia.
She also points to the fact that the father has not been entirely truthful about his own financial circumstances and during the course of cross‑examination he acknowledged that his bonuses from his employment indicated that he, in fact, earned in the course of the year a sum of $48,000 more than he had disclosed.
In all of the circumstances, given that I am limited in the period of time in which I am considering this particular matter, it does seem to me that I should treat the mother as having had no capacity to earn an income whilst she was in Australia; that the parties regarded it in the interests of the children for her to spend time in Australia and in my view, although the mother could potentially earn income for herself while out of Australia which she could spend on the children whilst she resided in Australia, there was no evidence of her capacity or of her in fact, earning any income during the time that she moved between Italy and Australia in 2006 and up to the child support assessment.
Given that she spent much of the year moving back and forward between this country and various other countries in order to maintain her residency status and her visas, it is not surprising in my view that she would have had difficulty maintaining any sort of employment. In the circumstances I think I should proceed on the basis that the mother had had a very limited opportunity to earn income over that period.
I also consider that the father has a capacity to provide for the support of the children whilst they have been with their mother. He has been paying with his consent the sum of $566 per week in accordance with the interim orders made in this matter. His statement of financial circumstances did not disclose that he had received a significant Bonus during 2006. I was satisfied that he has been paying his mortgage at a higher rate than he is required under the mortgage. In the circumstances and for those reasons, I assess that he should pay a sum of $600 per week for the time that the children were living with their mother from the date of the registration of the maintenance liability until the date of the registration of the Child support assessment.
I have not made an order for any further payment by the father. In particular I have not made an order that the father pay the rent of the mother’s South East Queensland property during periods that the children were not with her. My reason for that is because I consider that the mother should, at least, make that contribution given that the father is to meet all of the other costs of the children.
According to the evidence the children lived with the mother in Australia between March and early June and from 10 September until December 2006. I do not know what time the children have spent with their mother between then and the registration of the Child Support assessment but I consider that my judgement is sufficiently clear to enable the parties to calculate the amount payable. If not then they will have liberty to apply on this issue.
Any moneys paid by the father under the orders that have been made in the matter should be credited against any outstanding amount.

Parenting issues

The parties in this matter are also in dispute about some aspects of the parenting arrangements for the children.
As to the parenting issues, the father seeks orders that the children live with each of the parents on an alternating two-week basis provided that when the mother is not resident in Australia the children will live with the father and the two-week alternating basis will resume on her return.
The father also seeks an order that the mother provide security for the return of the children on any occasion that she takes them out of Australia.
The mother seeks that the children spend time with each of the parents equally but in her amended response filed on 11 December 2006 sought an order by para 4 that if she were unable to spend time on an alternating two-week basis, she should be entitled to make up time for the time that she has missed. She deposed in her affidavit of 9 February 2007 to planning to leave Australia on 10 May 2007 and return on or about 13 September 2007.
This would mean, as I understand the proposal, the children would spend four months with her from 13 September 2007. However, she appears also to be proposing that the children spend a block of three weeks and two days with her in California from 22 June to 15 July and a five-week block in Australia from 14 September to 19 October with another five-week block in California from 30 November 2007 to

3 January 2008.

Legal principles

The Court has, pursuant to s.65D of the FamilyLaw Act 1975 as amended, power to make a parenting order.
In deciding what, if any, parenting orders the Court should make in relation to the children, the Court must have regard to the best interests of the children as the paramount consideration.
In determining what is in a child's best interests I must consider the matters set out in s.60CC. The section prescribes primary considerations and additional considerations. There are two primary considerations. The first is "the benefit to the child of having a meaningful relationship with both of the child's parents" and the second is "the need to protect the child from physical of psychological harm, from being subjected to or exposed to abuse, neglect or family violence".
I do not intend to set out all of the additional considerations. I have considered the relevant factors and I have come to the following conclusions.
It is important to the children that they maintain a meaningful relationship with both parents and their sibling Z.
There is not an unacceptable risk that the children are likely to be exposed to family violence or abuse in either household.
The children have expressed views that they want to spend significant time with each of their parents and are comfortable with the fortnight about proposal.
The children have close and loving attachments to their parents and brother and they want that to continue. They have appropriate relationships with the partners of their parents.
Both parents have a capacity to parent the children and are committed and engaged parents. They do see value for the children in having a relationship with both parents and despite their feelings toward the other have the capacity to quarantine those feelings.
In this matter a family report was prepared by Ms Sue Lewis and there was a firm recommendation that the children spend alternate fortnights with each of the parents when they were available to do so. It is not in dispute that if the mother lives in Australia, then the parties will adopt a two-week on, two-week off arrangement for the children, between both of their parents. That is appropriate and consistent, not only with the children maintaining a meaningful relationship with their parents but also in accordance with the children's wishes. The issue in this case is what should be the arrangement for the children if the mother is not able to live in Australia and only able to visit every few months as she has done to date.

The children are currently in high school and I agree that it is reasonable to expect that their needs are best met by certainty and predictability in their living arrangements and not by providing for extended blocks of time in the mother's care when and if she is able to come to Australia. D is in Grade 12 and G is in Grade 10. These are important years of their education. The mother's proposal would see the children out of Australia and away from school for significant periods during the year. In my view that is not appropriate in the circumstances.
In my consideration, the proposal of the father best suits the needs of the children at the present time. The children obviously do have a close and loving attachment to their mother and they enjoy the time that they spend with her. They also obviously have a close and loving attachment to their father and enjoy their time with him.
My reasons for reaching that conclusion are as follows:
a)An arrangement where the children have two weeks with each parent when the mother is in Australia seems to accord with the wishes of the children.
b)That proposal was recommended by Ms Lewis.
c)The children are of an age and level of development that they have close attachments to both parents and the absence of the mother will not affect that relationship. The children have been well used to their mother being overseas.
d)The children are in important years in their education and the father has been the parent who has consistently been responsible for their educational needs. It is important in my consideration for him to have continuing input to allow for consistency of approach. By that I do not mean that the mother is not likely to attend to their needs but it is more difficult for her to stay abreast of their progress because of the prospect of her regularly leaving the country. If they are with their father at least fortnightly then he can continue to see that they stay on course.

Security deposit for the mother's wish to take the children out of Australia

The husband makes application that the mother lodge a security deposit of $25,000 should she travel overseas with the children.
The father in support of his application says that it was the mother's intention to retain G and school her in California if she is unable to secure a visa to return to Australia – see exhibit 1, letter to Ms M, Department of Foreign Affairs and Trade.
Ms Lewis noted (para 7.35) "G's frustration because she was not sure when she was returning to Australia" during the visit in December 2005.
The father also submits that the mother may have difficulties in obtaining a resident's visa if the Department of Immigration and Citizenship takes a view of the mother's previous work history and lack of income. It is for those reasons that the father submits that there is a risk to the children of them being removed from Australia or not returned if the mother takes them out of the country for a holiday.
In the decision of Line (1997) FLC 92-729 the Full Court of the Family Court of Australia held, allowing the appeal in part:
In fixing an appropriate level of security for the return of children the trial Judge should, in the exercise of their discretion, have regard to a number of relevant factors, including:
a) the purpose of the securities to provide a sum to realistically entice a person removing the children to return and adequately provision the party remaining in Australia to take action for the return of the children;
b) the degree of risk that the departing parent will not return;
c) whether the country of travel is a signatory to the Hague Convention on child abduction and the likelihood of deviation to a non-Convention country;
d) financial circumstances of both parties and any hardship to either party if the level of security was increased or decreased.
The Full Court in Line considered at paragraph 4.49:
The next matter is obviously the degree of risk that the departing parent once permitted to leave Australia will, despite assurances to the contrary, choose not to return. In assessing that degree of risk obvious considerations are the evidence (or otherwise) of continuing ties between the departing parent and Australia (such as ownership of real estate, existence of business interests or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests or the residence of close family and/or personal friends there).
In the present case the applicant seeks that the mother provide a security of $25,000. Ultimately in this matter,
a)I am not persuaded that the mother should not be permitted to travel out of the country with the children;
b)I am persuaded, though, that the mother should provide a security for a short period of time and that that security should be of the amount of $25,000.
My reasons for reaching that conclusion are as follows:
a)Although the mother agreed to the children living with their father in Australia so that they can complete their education in circumstances where she knew that she would not see them, given that she was living in Italy, it is the case that the mother was voicing an intention about retaining G in California during the Christmas holidays in 2005. That caused G to be worried and confused. The mother did return her but not until after some threats not to.
b)The mother has no real ties to this country. If her children were not here then it is unlikely that she would be here. She has no property here, family or other ties. Her property is overseas and clearly she would prefer to live elsewhere.
c)Balanced against those factors is that
i)the father is an American citizen and has continuing ties to that country. He has a significant income and is an employee of an airline. He has capacity, in my view, to regularly travel to the United States;
ii)the United States is a signatory to the Hague Convention, as is Italy;
iii)the children are of an age where they can contact their father if they have any concerns about their mother not returning them and he can take the necessary steps to secure their return.
d)However, G on the last occasion that this issue arose obviously had difficulty conveying her views to her mother. She apparently did want to return home and was relieved when her mother did return her. It seems though that she had difficulty expressing that to her mother. She may yet be too young to be assertive about her wishes when dealing with her mother.
e)The mother has an interest in property in Italy and has in the past used that property as security for borrowings. I do not consider that the mother does not have an ability to raise the bond.
I also take into account that the children do have a significant American heritage and I think it is important that they be given the opportunity to visit their extended family on both sides in the future. Their life experience has been to live in different parts of the world and it has not been unusual for them to travel extensively.
I consider that the bond should be in place until G completes her High School education. I consider that it is important and she be reassured that she can complete her education in Australia, as her parents intended for her, without having the stress associated with being embroiled in unnecessary disputes between her parents. By then I consider that if there were any prospect of her being retained against her will in an overseas country then it would not be difficult for her to make proper contact with her father and he could make arrangements for her return. I also would hope that by then she would have the assertiveness necessary to insist on her return if her mother wanted her to do otherwise.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Slack FM

Associate: Karen Smith

Date: 8 June 2007