Kusic & Kusic
[2023] FedCFamC2F 577
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kusic & Kusic [2023] FedCFamC2F 577
File number: DGC 3167 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – Parenting – where child lives with mother – where child wishes to live with father because of her connection to the local community – bests interests considered – child should live with mother.
FAMILY LAW - Parenting – rights of parents to live where they choose – whether mother should relocate to Suburb B – whether father should relocate to Suburb C – relocation of parents not ordered.
FAMILY LAW - Child support – application to discharge child support order made by Court – evidence insufficient to make such an order.
Legislation: Child Support (Assessment) Act1989 ss 117(4), 117(5), 117(5A), 117(6), 117(7), 117(7A), 117(8), 123A, 124, 125 129, 131
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 65DAA(1), 67Z, 67ZA, 102NA, 117.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.13.
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Sampson v Hartnett (No 10) [2007] FLC 93-350
Division: Division 2 Family Law Number of paragraphs: 99 Date of hearing: 1, 2 & 23 February 2023 Advocate for the Applicant: In Person Solicitor for the Applicant: None Advocate for the Respondent: In Person Solicitor for the Respondent: None Solicitor for the Independent Children’s Lawyer: Mr Lynch ORDERS
DGC 3167 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KUSIC
Applicant
AND: MR KUSIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BLAKE
DATE OF ORDER:
19 may 2023
THE COURT ORDERS THAT:
1.The Orders made by the Court on 17 June 2019 be discharged except for the following orders which remain in full force and effect:
(a)Order 3 relating to the father’s obligation to pay $50 per week in additional child support; and
(b)Declaration 1 to the effect that the mother is entitled to make any application as she may be advised in Country D in respect of the father’s military pension.
2.The mother have sole parental responsibility for X born in 2010 (‘the child’).
3.The mother must notify the father of any proposed decision relating to the long-term care and welfare of the child.
4.The child live with the mother.
5.The child spend time with the father as follows:
(a)Every alternative weekend from 6.00 pm on Friday until 6.00 pm on Sunday (or 6.00 pm on Monday if Monday is a public holiday or pupil free day);
(b)For one half of the term 1, term 2 and term 3 school holidays as follows:
(i)For the first half of school holidays from 6.00 pm on the last day of the school term until 5.00 pm on the second Saturday of the school holidays in odd-numbered years and in alternative years thereafter; and
(ii)For the second half of school holidays from 5.00 pm on the second Saturday of the school holidays until 5.00 pm the day before school starts in even-numbered years.
(c)At Orthodox Easter from 6.00 pm on Friday until 6.00 pm on Sunday in odd-numbered years;
(d)For Christmas (term 4 holidays) as follows:
(i)From 11.00 am on 10 January 2024 until 5.00 pm the day before school commences in 2024;
(ii)From 6.00 pm on the last day of the school term in 2024 until 11.00 am on 10 January 2025;
(iii)From 11.00 am on 10 January 2026 until 5.00 pm the day before school commences in 2026;
(iv)From 6.00 pm on the last day of the school term in 2026 until 11.00 am on 10 January 2027;
(v)From 11.00 am on 10 January 2028 until 5.00 pm the day before school commences in 2028; and
(vi)From 6.00 pm on the last day of the school term in 2028 until 11.00 am on 10 January 2029.
(e)For the child’s birthday, if the child is not otherwise spending time with the father that day, from after school until 6.00 pm (or from 10.00 am to 2.00 pm if the child is not at school);
(f)For the father's birthday, if the child is not otherwise spending time with the father that day, with the father from after school until 6.00 pm (or from 10.00am to 6.00 pm if the child is not at school);
(g)For Father's Day, if the child is not otherwise spending time with the father that day, from 10:00 am to 6.00 pm on Father's Day; and
(h)For Saint's Day, if the child is not otherwise spending time with the father that day, with the father from after school until 6.00 pm (or from 10.00 am to 6.00pm if the child is not at school).
6.Following term holidays and the Christmas holidays, the fortnightly school term arrangements will resume in the same pattern that would have occurred had the fortnightly arrangements continued throughout the holiday periods.
7.Notwithstanding any other provision, the child shall spend time with the mother as follows:
(a)For one half of the term 1, term 2 and term 3 school holidays as follows:
(i)For the first half of school holidays from 3.30 pm on the last day of school term until 5.00 pm on the second Saturday of the school holidays in even-numbered years and in alternate years thereafter; and
(ii)For the second half of school holidays from 5.00 pm on the second Saturday of the school holidays until the commencement of school in odd-numbered years.
(b)At Orthodox Easter from 3:30 pm after school on Friday until 6.00 pm on Sunday in even-numbered years;
(c)For Christmas (term 4 holidays) as follows:
(i)From 3.30 pm on the last day of the school term in 2023 until 11.00 am on 10 January 2024;
(ii)From 11.00 am on 10 January 2025 until the commencement of school in 2025;
(iii)From 3.30 pm on the last day of the school term in 2025 until 11.00 am on 10 January 2026;
(iv)From 11.00 am on 10 January 2027 until the commencement of school in 2027; and
(v)From 3.30 pm on the last day of the school term in 2027 until 11.00 am on 10 January 2028.
(d)For the child’s birthday if the child is not otherwise spending time with the mother that day, from after school until 6.00 pm or from 10.00 am to 2.00 pm if the child is not at school.
(e)For Mother’s Day, if the child is not otherwise spending time with the mother that day, with the mother from 10.00 am on Mother’s Day until the commencement of school or 10.00 am on Monday if the child is not at school.
8.The father is to provide the child with adequate accommodation (including her own bedroom, bed and age-appropriate facilities), and is to be in attendance from 7.00 pm in the evening until 9.00 am in the morning during any period the child is in his care overnight.
9.Changeovers are to occur by the mother dropping the child at the father’s home at the commencement of time, and by the father dropping the child off to the mother’s home at the conclusion of time, save for those instances where the father’s time commences immediately after school ends, in which case the father will collect the child from school and return her to the mother’s residence.
10.The father is to provide the mother with 48-hours’ notice if he is unable to attend time with the child.
11.Each party shall provide the child with a mobile telephone for use at each party’s respective home whilst the child is in their care, and shall encourage the child to cooperate with this arrangement.
12.Each party will facilitate the child communicating with the other parent by telephone at any reasonable time requested by the child.
13.The child will attend E School.
14.The mother must ensure that the child attends upon her psychologist Mr F(‘Mr F), or any other appropriate psychologist if Mr F is not available, and that a mental health plan is prepared in respect of the child.
15.The mother and the child are to attend counselling to assist with their relationship.
16.A copy of the family report in this matter, the letter from Mr F to the Court dated 1 February 2023, and these reasons for judgment be given to the child’s psychologist and to the therapist responsible for counselling between the mother and the child.
17.The father has permission to contact the child’s school or psychologist for the purpose of monitoring the progress of the child.
18.Each party will provide to the other party 14 days notice of any proposed change of address, and will otherwise keep each other informed as soon as practicable of any change to their telephone number and email address.
19.Each party will be entitled to receive all school newsletters, notices, reports, photographs, order forms, and other documents for the child ordinarily provided to parents and to the extent that it may be necessary, the mother authorise the child’s school to provide such documents to the father.
20.Neither party will enrol the child in any extracurricular activities requiring the attendance of the child during the time the child is in the care of the other party, without the other party’s written consent.
21.The parties are at liberty to take the child overseas for holidays during the child’s time with them, provided that the party taking the child overseas (‘the travelling party’):
(a)Provides notice to the other party no less than 28 days prior to travel;
(b)Provides the non-travelling party with a copy of the return tickets and itinerary of the child including contact details; and
(c)Arranges for the child to contact the non-travelling party every second day while overseas.
22.The mother will hold the child’s passport, provided that she will make the passport available to the father at least 28 days prior to any planned overseas travel by the father with the child, and for the purpose of the father obtaining any visas for the child. The father will return the child’s passport to the mother within seven days of their return from any overseas travel.
THE COURT DECLARES THAT:
23.Pursuant to sections 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied:
(a)That it is not practicable to obtain the consent of the father to enable the child of the relationship X born in 2010 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
THE COURT FURTHER ORDERS THAT:
24.The mother of the child be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the father of the child has not signed the passport application form.
25.The parties are to communicate by MyFamilyWizard only.
26.Each party is restrained by injunction from denigrating the other party, and/or the other party’s family while the child is in their presence or hearing, and/or allowing the child to remain in the presence or hearing of any third-party who is denigrating the other party or the other party’s family.
27.Each party is restrained by injunction from discussing the family law proceedings with the child and/or in the presence or hearing of the child and/or showing the child any documents relating to these proceedings.
28.The parties must encourage the child to comply with the orders made by the Court on this day.
29.The parties must not undermine the child’s relationship with the other party.
30.The appointment of the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kusic & Kusic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
In this matter, the Court is asked to make parenting orders in relation to the child X (‘X’) born in 2010. The primary dispute between the parties is whether X should live with her mother in Suburb C, or her father in the Suburb B area.
For the reasons that follow, I have decided that X should live with her mother in Suburb C. I have also made other orders consequent upon this.
BACKGROUND
The parties were married in 2008. X was born in 2010. The parties separated when the father left the family home without warning in December 2013. On this issue, the father told Ms G, Child Court Expert (‘Ms G’) and the author of the Family Report in this matter, that he ‘secretly escaped from the home’ on Christmas Eve and ‘it was not possible to co-parent or live together’.
Subsequent to this, proceedings took place in this Court. Those proceedings resolved by consent on 17 June 2019. Judge Burchardt made orders, among other things, that X live with her mother and spend time with her father during the week, on weekends and during school holidays (‘2019 Orders’). At that stage both parties resided in the Suburb B area.
In March 2021, the mother purchased a property in Suburb C. Suburb C is in the outer Region H suburbs of Melbourne. Suburb B is in the outer Region J suburbs of Melbourne. The distance between the two locations is approximately 100 kilometres. Travel time between the two locations could be between one to two hours, depending on traffic.
Following the purchase of the property in Suburb C, the mother commenced living there with X. There is a dispute about whether the father knew about this in advance of it occurring. Ultimately, on 8 August 2021, the mother recommenced proceedings in this Court. She did so, in part, to vary the 2019 Orders which provided for X to spend time with the father during the week. The mother’s case was that it was not practical for that to continue, given her move to Suburb C. The father opposed the mother’s application. In his Response filed 4 November 2021, the father sought orders that, among other things, provided for X to live with him, and spend time with the mother.
On 17 November 2021, I made orders that X be enrolled in secondary school in Suburb K (near the mother’s home).
POSITION OF THE PARTIES
At trial, each party pursued competing residency applications. Both parties were unrepresented at trial despite orders being made under section 102NA of the Family Law Act 1975 (Cth) (‘Act’), and the parties being advised of their ability to obtain legal assistance. The mother filed an Amended Application and an affidavit on 25 January 2023. The father did not file any trial material but relied on his Response and an affidavit he filed earlier in the proceeding on 4 November 2021. Both parties gave evidence from the witness box, although neither were permitted to cross-examine the other given the operation of the order made under section 102NA of the Act. In addition to this, the parties tendered various exhibits upon which they relied. The Court also received a written report and oral evidence from Mr F (‘Mr F’), psychologist. Ms G gave oral evidence in respect of the Family Report.
THE LAW
The Act sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.
Section 61DA of the Act contains a presumption in parenting matters that parental responsibility is to be equally shared. Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether a child is able to spend equal time with each parent. Where parental responsibility is shared and the Court does not make an order for the child to spend equal time with each parent, the Court is required to consider whether the child can spend substantial and significant time with the non-resident parent.
Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in a child’s best interests.
The primary considerations in relation to what is in the children's best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).
Finally, section 60CC(3) of the Act sets out the additional considerations that a Court must have regard to in considering what is in the child's best interests.
It is appropriate to examine the best interest considerations and then assess the time to be spent with each parent, and whether parental responsibility should be shared.
X’S BEST INTERESTS
Meaningful relationship with both parents
Both parents love X. X told Ms G she loves both parents. Ms G notes that X is torn between the love she has for both parents.
The evidence before the Court, which I accept, is that X has a meaningful relationship penalty privilege memo with her mother. She wants to have a close and bonded relationship with her mother in the future. It is also evident, however, that the strength of that relationship has been shaken by the mother’s decision to move to Suburb C. The mother did not consult X about the move, but simply told her the move was to occur. Ms G notes in the Family Report that the mother has had limited reflection on the impact this has had on X’s emotional well-being. Ms G also notes that ‘Whilst X expressed there had been no significant issues in the mother-daughter relationship prior to the residential move to Suburb C, there is a high likelihood friction would have developed within the relationship as X moved through adolescence, and if not about her living arrangements it would likely be about another topic’.
It is regrettable that a fissure has arisen in this relationship. Given the evidence about X’s wishes to move back to the Suburb B area, it is reasonable to infer that the mother-daughter relationship will be placed under even more pressure if X’s wish to move to Suburb B to live with the father is not granted.
While the mother and daughter relationship is currently under some stress and may be placed under more stress if X is not ordered to live in Suburb B with her father, it is also necessary to consider whether a more meaningful relationship will emerge between mother and daughter if X is permitted to live in Suburb B with her father. I have serious doubts that there will be an improvement in the mother-daughter relationship if X lives in Suburb B with her father, or that X will enjoy a more meaningful relationship with her mother if she moves to Suburb B to live with her father. I have reached that conclusion because in my view, the father is not supportive of a relationship between mother and daughter. Ms G noted, and I accept, that the father constantly denigrated the mother during the Family Report interviews. In the hearing before me, the father could not find anything positive to say about the mother despite being given the opportunity to do so, and despite the largely unchallenged evidence that she is responsible for most of X’s day-to-day care.
There is then the question of X’s relationship with her father. I accept that X loves her father. The relationship between them, however, is not as strong or as open as X’s relationship with her mother. X told Ms G that ‘I’m not very open to my dad, you need a mum to open up with’. This provides an important insight into the state and strength of X’s relationship with her father as matters stand. Will that relationship improve if X moves to Suburb B? It might do so. They will certainly spend more time together. I have significant doubts, however, that the relationship between X and her father will improve if X goes to live with him. I have those doubts for the following reasons. First, Ms G notes (and I accept) that a move to Suburb B is not about being parented by the father, but is rather about X’s connection to the local community. Second, as explained later in these reasons, the father is not actively involved as a parent in X’s life. He has not been her primary carer and is not engaged in key aspects of her life such as her schooling. Third, as Ms G notes, the father tends to accept, and act upon X’s wishes and does not exercise any independent judgement. Other evidence that emerged during the trial supports such a conclusion. Fourth, by not actively being interested or engaged in X’s life, the father places too much reliance on X being the messenger for him.
In summary, I am not confident that X will enjoy a more meaningful relationship with her father if she goes to live with him in Suburb B. I am confident that X’s relationship with her mother will suffer if she moves to Suburb B. It may be that X will be closer to and enjoy her connections with the community in Suburb B, however it seems to me that permitting X to live with her father may come at the cost of X enjoying a meaningful relationship with her mother.
Need to protect the child from harm
Ms G notes that there appear to be minimum risk factors that would indicate that X would be physically unsafe in either of her parents’ care, and it is likely both would provide for her needs to the best of their abilities. I accept that assessment. Ms G opined, however, the same cannot be said for X’s emotional safety and security. I turn to that issue now.
X has a strong preference to live with her father in the Suburb B area. That preference has not waned over time. X has been seeing a psychologist, Mr F. Mr F was subpoenaed to give evidence. He produced a letter to the Court and also attended for oral examination. Mr F last saw X in around November 2022.
Mr F’s evidence is that X suffers from adjustment disorder and mixed anxiety with depressive symptomology. Mr F says these conditions arise due to parental separation. The diagnosis of anxiety is, I note, consistent with what X was diagnosed with when she was presented to the emergency department of Suburb B Hospital on 8 January 2022 following threats of self-harm. I accept X suffers from adjustment disorder and anxiety.
Mr F and Ms G gave evidence in relation to X’s threats of self-harm. Mr F was not aware of any threats of self-harm and had not been made aware of the admission to Suburb B Hospital, even though it had occurred prior to him becoming involved with X. Neither X, nor the parents, had mentioned it to him. Having been apprised of what was contained in the hospital discharge form, Mr F stated that from the description given, X was suffering ‘due to the family circumstances’. Ms G gave evidence that suicidal ideation and threats of self-harm by X did not present as a significant concern during the Family Report interviews, and that X did not raise those matters with her. I accept the evidence of Mr F and Ms G.
Mr F stated that the most immediate barrier to X’s mental health improving is the conduct of these proceedings. He noted that continuing parental conflict following the conclusion of this case would also be a barrier to X getting well. He stated, based on X’s self-reporting, that she would be much happier living with her father in the Suburb B area. He also stated, however, there is no guarantee her mental health would improve if she went to live with the father. He was not able to comment on whether X’s mental health might deteriorate if she ceased to live with the mother, because this was not a matter he had considered. I accept all this evidence.
Ms G noted in the Family Report that X’s return to Suburb B would likely have a positive impact on her emotional and psychological well-being and stability. She stated in the Family Report that the most impactful outcome of X remaining with the mother in Suburb C will be potentially ‘on X’s mental health which could see ongoing decline and re-emergence of harmful thoughts and behaviours’. This may become more problematic, and a great risk, if X self-places with the father and then has to be returned to the mother. Questioned about what it might take for X to be settled, and whether X would be more settled if the father endorsed any decision by the Court for X to live with her mother, Ms G said:
‘I would hope that that would support her in accepting that decision and both settling in terms of her – her mental health but also her capacity or interest to potentially form other relationships in the new area. Whether [Mr Kusic] would – would do that or not, I’m not certain. But it would be my hope that with encouragement and support of both parents that she would settle in addition to support from a psychologist as well to work through – through those hesitations or concerns for herself. But it would be my – my hope that that would occur.
I accept this evidence of Ms G.
The evidence given by both Mr F and Ms G that X may be happier if she goes to live in Suburb B, because of the social connections she has there, warrants close examination. First, those conclusions are based largely on what X has self-reported to each expert. Second, it assumes that X’s peer groups and social networks have not changed in Suburb B, and that she will be able to successfully re-integrate into them. On one view, that is a significant assumption. It is well known, and Ms G gave some evidence to this effect, that social and peer groups can change rapidly for children of X’s age. There is therefore at least some prospect that if X was ordered to live in Suburb B with her father, she may return to find that her social groups are not as she remembers them. Third, and significantly, any conclusion that X might be happier in Suburb B needs to be weighed against the fact that if she goes to live in Suburb B with her father, she will no longer be living with her mother, the person who has cared for her primarily throughout her life. Mr F admitted he had not assessed this aspect of the equation. Ms G noted there would be substantial concerns about how the mother-daughter relationship would be maintained. I am concerned about what impact the potential loss of a meaningful relationship between mother and daughter would have on X’s emotional well-being, given Ms G’s evidence and also the father’s attitude to the mother. In my view, therefore, the evidence that X will be happier if she goes to live with her father in Suburb B needs to be treated cautiously, and weighed appropriately, when the potential deterioration of the mother and daughter relationship is considered.
While much of the argument before me tended to focus on any potential move to Suburb B, and the potential benefits to X’s mental health, the evidence of both Mr F and Ms G discloses another significant contributing factor to X’s mental health issues. In my view, having heard their evidence, an equally important and significant contributing factor to X’s diagnosed mental health condition is the parental conflict that is occurring between the mother and father. X’s mental health is unlikely to improve while these parents remain in a state of high conflict, and each undermines the other. Regrettably, despite what the parents told me when I questioned them about this during the hearing, the evidence suggests that these parents cannot find any way to co-parent their daughter. Until they do, there is a real risk that X will continue to suffer, whether she lives in Suburb B or Suburb C.
For these reasons, I am prepared to accept that X might be happier in Suburb B and such a move might have a positive effect on her mental health in the short term. I am not prepared to accept, however, given what I have referred to above, that X’s mental health will improve on a long-term basis if she moves to Suburb B. Any benefit she may receive from a move to Suburb B may well be short lived in circumstances where the mother-daughter relationship will not be supported by the father and is likely to suffer, and in circumstances where the parental conflict which has persisted for so long, is likely to continue.
X’s views
X has repeatedly expressed a strong preference over the time that this matter has been in this Court to live with her father. She has expressed that preference to Ms L (who prepared the Child Impact Report), Ms G, Mr F and the Independent Children’s Lawyer. Ms G describes X as giving the impression that she is older than her chronological years. She describes X as speaking with articulation, insight and overall passion, boarding on a plea, to have her thoughts and feelings heard and acted on by the Court, and her parents. X’s views were described by Ms G as ‘strong, fixed and appeared unmalleable’. X has told the father, Ms G and Mr F that she will run away to her father’s home to live there if the Court orders her to live with her mother. X’s reasons for wanting to live with her father are summarised by Ms G in the following way: ‘Her narrative was clearly linked with her developmental and contextual need to feel a sense of connection and belonging, which was previously established in the Suburb B area via the community and peer relationships. What was apparent from her narrative was that her sense of connection and having her emotional care needs met was not centred on with ’whom’ she would live with, but ‘where’’. I accept all of this evidence.
X is 13 years of age. Given the frequency, manner and reasons given for her views, I give her views the most significant weight in assessing the relevant best interest considerations.
The extent to which parents have taken or failed to take the opportunity to participate in making decisions about long-term issues, to spend time with the child and to communicate with child
The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is evidence to suggest that both parents lack capacity to meet the needs of X, other than her basic physical needs. Ms G notes that ‘neither parent has displayed a child centred approach or [is] likely to meet the emotional care needs of X, independently or collectively’. I accept that evidence. It accords with my own views of the evidence of the parents, and my assessment of them in the witness box.
The mother’s lack of capacity or insight is demonstrated by the circumstances surrounding her move to Suburb C. First, the mother admitted she had not informed X of the move until she had made an offer on the house at Suburb C, and received confirmation that her loan was approved. The mother told the Court her reason for informing X so late was that she did not want to confuse her. I am satisfied that the mother’s decision to move to Suburb C was made without her taking any account of the impact it would have on X, X’s social circle and friendships, and X’s connection to the Suburb B community. Second, the mother failed to take account of the effect a move to Suburb C would have on the relationship between X and her father. In short, the mother’s decision to move appears to be one that was based largely around her own interests. She has not demonstrated insight into X’s needs.
The criticisms of the mother to which I have referred above, need to be weighed against other matters. The mother has been principally responsible for X’s care for much of X’s life. The mother is X’s primary carer. The mother pays for all of X’s school fees and expenses, prepares her meals, drives her to school and to her activities, participates in her sporting events and excursions, monitors her performance at school and assists with homework. The father accepted that the mother provides for X financially. By doing these things, the mother has demonstrated engagement in making long-term decisions for X, has shown a capacity to parent and has taken up the responsibilities of parenthood.
The father’s capacity to parent is untested. Over the course of the trial, I came to the view that he lacks any capacity as a parent. That view is based on the evidence before me, some examples of which are set out below:
(a)the father told the Court he has not contacted X’s school at all to check on her progress. Despite this, he also told the Court that he believes X is an above-average performer at school, attributes that performance to himself, and advocates a change of school for X;
(b)the father told the Court of an incident where X was bullied at school. He tendered a video of the bullying incident. Despite his apparent concern about the incident, the father did not take any steps to speak to the school about it. The father’s evidence was that he felt that the mother should have spoken to the school about it;
(c)the father says he wants X to attend school in the Suburb B area either at M School, or N School. The father wants X to attend one of these schools because X has told him that that is what she wants. There is no evidence that he has conducted any proper assessment of the schools, or that he has considered the suitability of the schools to X’s particular needs, other than a vague assertion that he wants her to attend a Christian school;
(d)the father told the Court of an incident where X had threatened self-harm. He says he attended the police station to pick her up, and made a statement. He says he subsequently told X that she must not harm herself because it was against her faith and religion. He said he took X to the doctor. He could not say, however, whether he had told X’s mother (the primary carer) about the incident;
(e)the father told the Court of another incident where X was threatening self-harm. He took her to the emergency department of Suburb B Hospital. A mental health plan was recommended for X. He subsequently took X to a general practitioner. Despite taking these steps, and despite the natural fear a parent might have for seeing his child in this condition, he was unable to say whether he ever received a mental health plan for X, or obtained one. He also told the Court that he did not tell the mother about the recommendation for X to receive a mental health plan so that she could manage things and monitor X;
(f)the father told the Court he has never spoken with Mr F to check on X’s mental health. He told the Court that he tried to contact Mr F once, left a message with his secretary and never got a call back. That might be true (I have my doubts) but it is clear the father never pursued the discussion;
(g)the father failed to provide consent to Ms G to enable her to speak with Mr F prior to Ms G preparing the Family Report;
(h)the father failed to tell Ms G during the Family Report interviews that he had taken X to hospital because she had threatened to self-harm;
(i)when asked what X and he did during their time together, the father stated, among other things, that X had recently had friends sleepover at his place. He told the Court that when that occurs, he leaves the girls in the house alone at around 8.00 pm and sleeps at his factory which is nearby. Questioned about this, his answer was ‘morality, all those fathers staying with the girls inside during the night’. Asked whether he was concerned about leaving 13-year-old girls alone, he said ‘X has my trust’, and made no mention of the other 13-year-old girls that were present. Asked whether the parents of X’s friends knew that he was absent overnight, he equivocated, speaking generally that he asks them, but then saying ‘I suppose that the girls tell them that I am sleeping in factory while they are staying with X’;
(j)the father is led by X, rather than acting as a responsible parent. Ms G noted in the Family Report that the father’s position in relation to time spent between the mother and X was aligned to X’s views and ‘did not appear to come from a position of parental responsive decision-making’, he stated: ‘I don’t care’, and ‘any time she wants’, referring to X’s wishes, which could include ‘every weekend’ and ‘every holiday’. Ms G also stated at paragraph [54] of the Family Report the following: ‘[the father] was equally verbose when it came to his change of residency position, and whilst he proposed X to live with himself, this was prefaced by him stating ‘it’s all the same to me, if she feels the best place for her is to live with mother, I will agree. If she decides with me, I agree’. Ms G also noted that ‘adolescence is still a very formative age and most 13, 14, and 15 year olds still need a high degree of parental care and responsibility to help guide them through their decision-making. They are in a stage of increasingly independent decision-making, but they do not necessarily make safe decisions for themselves’.
Ms G in the Family Report noted that the father is untested as a parent. By the time she concluded giving oral evidence, having been brought up-to-date on the evidence that had been given during the trial, Ms G’s views about the father’s capacity as a parent firmed. She recommended that X live with the mother.
The father, in my view, lacks any capacity to independently parent X. If she goes to live with him, there is a real and significant risk that he will be a hands-off parent, and will let her do whatever she wants. I am also concerned given his ‘escape’ in 2013, that if things get difficult, as they might with any teenager, that he will simply disengage further from X, or give in to her demands without a further thought as to her best interests.
The likely effect of any changes in the child’s circumstances, etc
A move to Suburb B to live with her father will result in X ceasing to live with the mother. As noted earlier, there is a real risk that X’s relationship with her mother would be seriously jeopardised if she went to live with the father.
A move to Suburb B to live with her father will allow X to spend more time with him. It is possible their relationship will grow and develop because of that.
The move to Suburb B will allow X to spend more time with her friends. The evidence suggests, and I am satisfied that X’s attraction to Suburb B is about her perceived social connections and peer network. I accept that this change of circumstance will be positive for X.
Each of the parties has adult children. There is little evidence before me that suggests that X would benefit from spending more time with any of her step-siblings on the maternal side or the paternal side. Neither party, nor the Independent Children’s Lawyer, emphasised the importance of X’s relationships with her step-siblings or any other person.
The practical difficulty and expense of a child spending time and communicating with a parent
The mother’s move to Suburb C has created geographic distance between each of the parents. While 100 kilometres may not sound like much, the travel time to cross Melbourne is a significant barrier. That has affected the father’s ability to spend time face-to-face with X. I have little doubt given the father’s attitude to the mother that if the situation is reversed, and X comes to live with the father, the mother’s ability to spend time with X will be significantly reduced. The geographic distance in this case is compounded by the fact that the parents are in conflict and undermine each other.
While spending face-to-face time might be difficult, X is old enough to telephone each of her parents.
The maturity, etc, of the child and either of the child’s parents and other characteristics that the Court considers relevant
I accept the evidence of Ms G that X is firm in her views. I also accept the evidence of Ms G that given the context of her development, X has elevated her development somewhat towards self-reliance and self autonomy. I have given these matters significant weight in my assessment as to what may be in X’s best interests.
I am not satisfied that either parent has capacity to parent maturely. For the reasons set out earlier however, my concerns about the father’s maturity are much more significant than the concerns I hold about the mother’s maturity, given the mother’s role as primary carer.
Any family violence involving the child or a member of the family
Any family violence order that applies, or has applied
There is a report from the Department of Families, Fairness and Housing under sections 67Z, and 67ZA of the Act dated 30 November 2021 which summarises various reports concerning X’s safety and well-being. None reach the threshold for investigation by Child Protection but there have been concerns for X’s well-being arising principally, it seems, from the parental conflict. I note that each of the parents makes allegations of family violence against the other. An Interim Intervention Order was made by the Magistrates Court on 6 May 2021 against the father for the protection of the mother and X.
The inference to be drawn from the information noted above is that these parents do not get on. They do not communicate. There is no co-parenting relationship. Conflict is likely when they interact. X has been, and is likely to, continue to be exposed to that conflict. Accordingly, any orders need to be drafted in a way that minimises contact between the parents. It is conflict between the parents that, as I have noted elsewhere, presents a risk to X’s well-being.
An order least likely to lead to the institution of further proceedings
X has threatened to run away to live with her father if the Court does not agree to make orders in accordance with her wishes. The evidence before the Court, which I accept, is that there is a risk of that occurring. Making an order that X live with the father will therefore reduce the prospect of there being further proceedings, for example, recovery order proceedings, if X does in fact self-place with her father.
Placing X with the father, however, does not eliminate the risk of the institution of further proceedings. It is very unlikely that X will be actively and meaningfully parented by the father. His failure or inability to act as a parent could also lead to further proceedings. For example, if the father fails to properly manage X’s mental health, or monitor her progress in education, that could prompt further proceedings by the mother, or even child protection authorities.
This is a difficult case. Ultimately I have formed the view that there is a risk of the institution of further proceedings, with whichever order I might make.
Other matters
In the Family Report, Ms G did not make a recommendation as to which parent X should live with. She made a recommendation that the parent with whom X lived should have sole parental responsibility. She also stated in the Report that the mother, given the impacts of her decision to relocate to Suburb C, should consider returning to the Suburb B area to facilitate X’s re-engagement in that community. At the time she made these recommendations, Ms G did not have the benefit of consulting with Mr F. Nor had she had the benefit of hearing the parties’ evidence given during the course of the trial.
Ms G was asked whether she would alter her recommendation in light of the information she had obtained from Mr F and in light of the information that had emerged at trial. Ms G took the opportunity to change her recommendation. She indicated she was supportive of X residing in the mother’s primary care, and spending alternate weekends and half of school holidays with the father, with the mother to also have sole parental responsibility for X.
THE PARENTING ORDERS
The mother proposed orders that would see her have sole parental responsibility for X, that X live with her in Suburb C, and that X spend time with the father each alternate weekend from Friday after school until Monday morning, as well as for half of all school holidays. The father proposed that X live with him in Suburb B, spend alternate weekends with the mother, and half of school holidays with the mother.
When the best interests considerations are weighed, I regard it as being in X’s best interests that she live with her mother. The reality of this case is that the father lacks any capacity as a parent. I have no confidence in him being able to exercise judgement on the range of matters a parent is required to make decisions about. His attitude to X’s mental health is particularly concerning. While it is acknowledged that he took X to Suburb B Hospital when she needed, he has done little else. He failed to obtain a mental health plan for X, failed to tell the mother that it had been recommended that X receive a mental health plan, failed to follow up with X’s psychologist as to the state of her health, and failed to consent to Ms G speaking to the psychologist. He professes concern about X’s treatment at school, but never followed up with the school about the bullying incident, and apparently fails to understand the impact that such an incident could have on X’s mental health. He seeks an order that X attend a particular school, without ever following up on her educational progress. He trusts a group of 13-year-old girls to manage themselves on a Saturday night without any adult supervision.
There is then the question of whether it is better for X to live with the mother in Suburb B. This option was not raised by the parties, however, it was suggested by the Independent Children’s Lawyer. The Court has the power to order a parent to relocate. In respect of the exercise of that power, a Full Court in Adamson & Adamson [2014] FamCAFC 232 (‘Adamson’) stated at [37] that:
[37]In Sampson this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]). It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).
Furthermore, in Adamson, it was noted that:
(a)to order someone to relocate to another place will require the Court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move (at [38]);
(b)the rights of parents to live and work where they choose (freedom of mobility) only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects (at [66]);
(c)it is not the task of a trial judge to mould or create the most desirable solution, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they live and work consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interest could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives (at [68]);
(d)if ultimately it was determined that interference with parental rights are called for, all alternatives (including the rights of both parents to choose where they live and work) would need to be considered (at [69]).
The evidence going to the issue of parental relocation is somewhat limited in this case given the parties were unrepresented. The mother’s evidence is that she purchased a four-bedroom, two-bathroom dwelling in Suburb C. She and X (and her son from an earlier relationship, Mr O) previously lived in a two-bedroom apartment in Suburb B where the mother shared a bedroom with X. The mother deposes that the home in Suburb C accommodates the three of them as a family, and that X has her own personal space and her own bedroom. The mother says there is no way she could afford a comparable property in the Suburb B area. The mother works part-time as a care worker at the Employer P. She works 24 hours per week and earns approximately $45,000 per year. I accept all of this evidence.
The mother deposes that she and Mr O facilitate X’s friendships all over Melbourne by driving her to meet friends at their houses. She also deposes that the move to Suburb C has reduced her travel time work by 15 minutes each way, and that she also saves money because she is no longer required to pay tolls. I accept that evidence.
As can be seen from the above, there are some real advantages for X that have flowed from the move to Suburb C. She has her own space. Her mother’s modest resources may extend further (including for her benefit) because of the savings the mother has made in transport costs. The mother has more time potentially to spend with X. There is no doubt also a level of financial and accommodation security that the mother has obtained by being able to purchase her own home, which X now has the advantage of.
I infer that the advantages to which I refer above would be jeopardised (perhaps seriously so) if the mother were to be ordered to relocate to Suburb B. The mother may have to sell her property and is not known whether she would sell at a profit, break even, or sustain a loss. She would have to find a home in Suburb B, probably on a rental basis. That home may be smaller than the home she currently has. X may not have her own space. The mother may not have the accommodation and financial security that comes from home ownership. The mother will also incur the additional travel costs (time, petrol and tolls) which mean her modest financial resources would be stretched further, and not necessarily for X’s benefit. The practicalities of life therefore mean it would be difficult for the mother to relocate back to Suburb B.
The authorities make clear that I am also required to assess alternatives, including the father’s exercise of his right to choose where he lives and works. There are two difficulties that arise in this case with making that assessment. First, there is no evidence from the father on why he needs to live and work in Suburb B. There is no evidence as to what the consequences would be if he were to be ordered to live near Suburb C, other than the mother saying during the course of the trial that the father could have more time with X if he moved near Suburb C. Second and more significantly, this is an unusual case. The option of requiring the father to relocate does not address the issue that presents in this case. The issue in this case is not X’s connection to her father, but X’s connection to the local community in the Suburb B area. Little would be gained from requiring the father to relocate closer to Suburb C. X’s best interests would not be served by requiring the father to relocate in the circumstances of the case.
The other fact relevant to assessing parental relocation is X’s threat to self-place with her father. There is a risk of that occurring. It is a factor that tends to push this case closer to a rare or extreme case as contemplated by Adamson.
Ultimately, however, when these matters are considered, I am of the view that this is not a rare case, or a case with extreme factors that would warrant the Court exercising its discretion to make a coercive order requiring the mother to relocate. I am not convinced that X’s best interests are so adversely affected on the current state of the evidence so as to justify an interference with the mother’s rights. I accept that X wants to live in Suburb B, that this is a strongly held view repeated consistently to those with whom she has spoken, that she has threatened to run away, and that she suffers from adjustment disorder and anxiety. These matters need to be balanced, however, against the following. First, X is in superior accommodation in Suburb C. Among other things, she has her own room which she does not have, and may not have in Suburb B. Second, there are clear advantages (noted earlier) for X in the mother as the primary carer continuing to live in Suburb C. Third, the advantages for X in the mother living in Suburb C would be jeopardised by requiring the mother, as the primary carer, to relocate to Suburb B.
It also needs to be borne in mind that while X will live in Suburb C and attend school nearby, she will be able to maintain a connection with her peers in Suburb B. This is not a case where the mother lives interstate, overseas, or hundreds of kilometres away. The mother has said that she and her son facilitate X’s friendships by driving her all over Melbourne to meet friends. Also, under the mother’s proposed orders, X will spend every alternative weekend and half of all school holidays with the father. These measures provide X with significant opportunities to maintain her friendships in Suburb B and her connections to the local Suburb B community, while at the same time allowing her to be parented by her mother and allowing her to enjoy the advantages that have accrued to her from the mother’s move to Suburb C.
I note, and in fact expect, given the evidence, that X will be disappointed with this outcome. X’s disappointment and her emotional well-being need to be properly managed. I will, consistent with the recommendations of the professionals, make orders for X to attend a psychologist, and for counselling to occur between mother and daughter. Both Ms G and Mr F (to a lesser extent) considered it necessary for psychological counselling to continue. Based on the evidence before me, the success of this treatment also depends on the ability of these parents to cease their conflict. Any treatment of X will be compromised if they cannot cease their conflict. I will make injunctive orders seeking to stop, or minimise that conflict from occurring.
As required by the Act, I have considered whether X can spend equal time with her father. Such an order is not practicable in the case, given the geographic distance between the parties. Nor is it practicable to make an order for substantial and significant time between father and child, given that geographic distance.
It is appropriate for the reasons I have given above, to make orders that X spend alternative weekends with the father so that she can maintain a connection to her peers in Suburb B. In my view, weekends should extend from 6.00 pm on Friday to 6.00 pm on Sunday. X should spend half of all school holidays with the father. These arrangements will ensure X has time in Suburb B where she wants to be.
The parties were in agreement that they would share Orthodox Easter, Christmas, and Orthodox Christmas. I will make an order to that effect. The mother proposed X spend time with her father on X’s birthday and on Father’s day. I will make an order to that effect. The father should also spend time with X on Saint’s Day (being the Saint relevant to his family each year). The mother, in her proposed orders, accepted that was appropriate.
The mother’s proposed order five sought to provide clarity to the parties in relation to when school term arrangements commence following holidays. I regard it as appropriate to make such an order as being in X’s best interests, given the conflict between the parents.
The mother’s proposed order six sought to provide clarity in relation to times that X is to spend with her mother during school holidays and on special occasions. I did not receive any submissions on this order. I regard it as being in X’s best interest to make such an order to avoid any conflict.
There are historic allegations of the father living in a factory, and on the evidence before me, it seems he still sleeps there from time to time. I will therefore make an order that the father provide adequate accommodation for X when she is in his care. I note that as part of this order, the mother sought that the father be in substantial attendance at all times that X was in his care. I received no submissions about this. I understand the mother’s concern about this, given the father’s evidence that, among other things, he permits X to have sleepovers with her friends on an unsupervised basis. In my view, it is not practical to require the father to be in substantial attendance at all times when X is in his care. Such an order could mean, for example, that he has to accompany her when she sees her friends during the daytime, when she goes shopping or to the movies. I can think of no 13-year-old child that would tolerate that, nor any parent that would regard that as being in their child’s best interests. I decline to make the order in the terms sought by the mother. I will, however, in light of the evidence that came out at the trial, make an order that the father is to be in attendance from 7.00 pm in the evenings, until 9.00 am in the mornings when X is in his care overnight.
The parties are in disagreement about changeover. I indicated to them that I intended to split the burden of travel equally between them. The prudent course in respect of weekend time in order to avoid conflict between the parents is for the mother to drop X at the father’s house at the commencement of time, and for the father to drop X at the mother’s house at the conclusion of time. It is desirable that the father be responsible for returning X to the mother. He will need to be active in ensuring that occurs. It is his responsibility to return X to the mother’s care.
The mother proposed that the father provide her with 48-hours’ notice if he is unable to spend time with X. The father agreed to the order, and I will make an order in that form. I will also make the order that each party facilitate X communicating with the other parent by telephone at any reasonable time requested by X. It is appropriate that X, at 13, be at liberty to call the non-resident parent when she wishes to.
Given X will be living with her mother in Suburb C, it is in her best interest that she continue to attend E School. I will make an order to that effect.
As I have noted above, it is necessary to make orders to promote X’s emotional well-being, given the evidence in this matter. Accordingly, X should continue to see a psychologist. I will make an order that the psychologist be provided with a copy of the Family Report in this matter, these reasons for judgment and also (to the extent the psychologist is not Mr F), the letter prepared by Mr F for this Court. I will also order the mother to make sure that a mental health plan is obtained for X. Furthermore, as recommended by Ms G, X and her mother are to attend counselling to assist with their relationship. The counsellor should be given a copy of the Family Report, a copy of the letter from Mr F, a copy of any mental health plan prepared for X and a copy of these reasons for judgment. These orders are necessary to promote X’s emotional well-being and mental health.
The father has not so far been engaged with X’s school, or with her psychologist. I will make an order facilitating this for him, should he wish to become involved.
Both parties consented to an order that they provide the other with 14 day’s notice of any change of address, or other details. Both parties also consented to an order that they be entitled to receive relevant school communications. I will make orders to effect these consent arrangements.
The mother sought an order that neither party will enrol X in any extracurricular activities requiring the attendance of X, during the time that X is in the care of the other party, without the other party’s written consent. The father opposed this order. I regard it as appropriate to make the order. The parties live far apart. It is not practical, nor in X’s best interests, to require one parent to travel across town to ensure X attends an activity booked by the other parent. It is also important that when X is in Suburb B, she has the freedom to do what she wishes without having to undertake activities organised by the mother. Likewise, the father should not infringe upon X’s time with the mother by requiring X to attend activities. In all the circumstances, and given the conflict between the parties, I will make the order in the terms sought by the mother.
There is then the question of overseas travel. There appears to be agreement between the parents that each should be able to travel overseas with X, providing the travelling parent provides the non-travelling parent with notice, an itinerary, a copy of tickets and arranges for the child to contact the non-travelling party. I will therefore make an order to that effect. The mother also sought an order that the father pay a bond of $20,000 to her solicitor to provide security for the return of X to Australia. There is no evidence before me of any risk that the father might not return the child, nor any evidence of why a bond should be paid in the circumstances. For these reasons, I decline to make proposed order 16 in the mother’s Amended Application.
There is a question as to whether an order should be made that both parties encourage X to comply with Court orders. I asked the father about this issue. He initially told me that he would respect the decision of the Court, however, he later equivocated in his answers. Plainly, the risks to X’s mental and emotional health will continue to mount if the parties do not respect the decision of the Court, and continue to engage in conflict. I regard it as necessary to make an order in the terms sought so as to encourage the parties to accept the decision, and to convey their acceptance of the decision to X. If that is done, that may reduce conflict and it may contribute to an improvement in X’s adjustment disorder and anxiety.
The mother sought orders that the father continue to attend upon a psychiatrist. I decline to make such an order. While the mother asserts the father has mental health problems, they amount to little more than assertions. Ms G did not assess the father as being a risk to X from unstable mental health. Furthermore, while the mother sought that the father attend upon a psychiatrist, she did not seek any order that X’s time with her father be contingent upon the father receiving clearance from a psychiatrist as to the state of his mental health.
Finally, given the evidence of the conflict between these parties and their undermining of each other, it is in X’s best interests to make an order that all communications between them occur using the MyFamilyWizard application. It is also in X’s best interests to make orders by injunction restraining the parties from denigrating each other, or allowing X to remain in the presence of a person who is denigrating the other party. An injunction should also be issued, preventing the parties from discussing these proceedings with X.
PARENTAL RESPONSIBILITY
In my view, this is a case in which the presumption of equal shared parental responsibility has been rebutted. These parties are in high conflict. That conflict is presenting a risk to X’s mental and emotional well-being. Not only is there high conflict, but there is a lack of communication between the parents.
There is also the reality of the situation before me to consider. The reality of the situation is that the father is not meaningfully engaged in X’s life. He has not engaged with schools or X’s treating professionals. He has a limited understanding of the needs of a girl of X’s age. In many ways, granting an order for sole parental responsibility to the mother simply reflects what is already the current situation. That is, it is the mother who provides for all of X’s needs (except for any child support that might be received), takes her to school, takes her to doctors, and manages things for X on a short and long-term basis. For all the reasons referred to earlier, it is in X’s best interests that the reality of the situation is recognised. X’s best interests mean that the mother should be granted sole parental responsibility. An order will be issued to that effect.
The order I am making for sole parental responsibility does not mean that the father should be excluded from being aware of what is going on in X’s life. It seems unlikely that anything will change his present course of non-engagement, but if he chooses to change, it is important to give him an ability to be aware of, and engage with aspects of X’s life. Therefore, in addition to making an order for sole parental responsibility I will make an order that the mother notify the father of any long-term decisions affecting X. I will also make orders granting the father permission to contact X’s school and her treating medical practitioners (including her psychologist). The mother should hold X’s passport, given that she has sole parental responsibility for X.
I have stepped back to consider all of the orders I propose to make in this matter. I am satisfied that they are orders that taken together, are in the best interests of X.
THE APPLICATION TO DISCHARGE THE CHILD SUPPORT ORDER
The father seeks to discharge order three of the Final Orders. That order provides that the father is to pay the mother $50 per week in additional child support by bank transfer to the mother’s Westpac Banking Corporation account. The father also seeks that his outstanding child support debt be waived.
In his affidavit filed over 12 months ago on 4 November 2021, the father admits he consented to the order above in June 2019, despite what appears on the face of the order. He deposes, however, that at the time he agreed to the order, he was not represented. He further deposed that he thought the mother was seeking child support of $50 per week, which he was happy to agree to. He says he did not appreciate, or understand, that the mother was seeking an additional $50 per week on top of the assessment conducted by the Child Support Agency. The father also deposes that he was unable to work for much of 2020 and 2021 because of the Covid-19 pandemic, and that he has very limited savings. He annexed to his affidavit documents from the Child Support Agency, tax returns containing a tax agent declaration, and financial statements from his business that do not appear to have been verified, or signed off by an accountant.
In the witness box, the father told the Court his financial situation had improved since he had filed his affidavit. I note that he comes to Court offering to pay X’s fees at a private school, so his situation must have improved significantly since 2021. In response to the mother’s allegation that he was behind in child support payments, he told the Court that ‘I’m paying everything that child support requires from me’. On these issues, he produced no documents to confirm either that he was up to date in child support payments, or that there was no longer any child support debt outstanding.
There are a number of difficulties with the father’s application. First, this appears to be an application made pursuant to section 129 of the Child Support (Assessment) Act 1989 (‘CSA Act’). Rule 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) requires any application under the CSA Act to be served on the Child Support Registrar. There is no evidence before me that the Registrar has been served.
Second, section 129 of the CSA Act governs how the Court is to deal with applications of this type. It relevantly provides as following:
(1)If an order under section 123A or 124 is in force in relation to a child (whether or not all things ordered to be done by the order have been done):
(a) the court that made the order; or
(b)another court having jurisdiction under this Act in which the order has been registered;
may under this section, by order:
(c) discharge the order; or
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(e)if the operation of the order has been suspended under paragraph (d)—revive its operation wholly or in part; or
(f)subject to subsection (3), vary the order (including any matter specified under subsection 123A(3), or any statement made under section 125, included in the order) in any way.
(2)The court must not make an order under subsection (1) in relation to the order under section 123A or 124 unless the court is satisfied, having regard in particular to any matter specified under subsection 123A(3), or any statement made under section 125, that it would be:
(a)just and equitable as regards the child, the carer entitled to child support and the liable parent concerned; and
(b)otherwise proper;
to make the order.
(3)The court must not, by order under subsection (1), vary an order unless it is also satisfied:
(a)that making the variation is justified because of a change in the circumstances of the child, the carer entitled to child support or a liable parent concerned since the order was made or last varied; or
(c)that making the variation is justified because of a change in the cost of living since the order was made or last varied; or
(d)in a case where the order was made by consent—that the order is not proper or adequate; or
(e)that material facts were withheld from the court that made the order or from a court that varied the order, or that material evidence previously given before such a court was false.
(4)If the court proposes to vary an order made under section 123A or 124 otherwise than by varying any matter specified in the order under subsection 123A(3), or any statement included in the order under section 125, the court must consider whether, having regard to the proposed variation, it should also order the variation of any such matter or statement.
(5)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and a liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(5A)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(6)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(7)Subsections (5), (5A) and (6) do not limit the matters to which the court may have regard.
(8)In satisfying itself for the purposes of paragraph (3)(d), the court must have regard to any payments, and any transfer or settlement of property, previously made by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
(9)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any changes that have occurred in a relevant Consumer Price Index published by the Australian Statistician.
(10)The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made, or was last varied having regard to a change in the cost of living.
(11)Subject to any order made under section 131, the discharge of an order does not affect the recovery of arrears due under the order, or under this Act, when the discharge takes effect.
I decline to discharge order three of the Final Orders or to waive any child support debt for the following reasons.
First, the father has not served the Child Support Registrar in accordance with the Rules. Second, the father has not filed any up-to-date evidence of his financial position. There is no evidence of a child support debt. The father’s evidence is that he is up to date. Third, the father’s evidence does not address in any substantial way, the matters the Court is required to consider under section 129 of the CSA Act.
Fourth, the father’s evidence is inconsistent. In his affidavit filed more than 12 months ago, he says his financial situation has suffered. He told the Court during the hearing however, that his financial position had improved. As I have stated, it must have improved because he came to Court offering to pay X’s private school fees. He also told Ms G that he had access to substantial funds in Country D. In short, I do not accept the father’s evidence in relation to either his financial position, or the existence of any child support debt.
As a further observation, the father says he did not understand that in 2019 he agreed to provide additional $50 per week in child support. I do not accept this evidence from the father. He provided no detailed explanation of what occurred in 2019 which led to any misunderstanding, nor did he provide any other evidence to corroborate his account of what occurred. The father had an interpreter present in 2019.
COSTS
The mother seeks an order for costs of $30,000 for legal fees and loss of earnings. In her affidavit in support of this claim, she deposes that she has been forced to take days off work to accommodate changeover when the father makes last-minute alterations to drop off or pick up arrangements. She also says that an order for costs is the only way to stop the father from pursuing her in the legal system, and that the parties never completed a property settlement when their relationship ended. She estimates legal fees and loss of earnings at approximately $30,000, but provides no evidence of such.
I decline to make an order for costs. None of what is set out by the mother in her affidavit gives rise to the making of a costs order under section 117 of the Act. To the extent I am wrong about that, I would also add that the mother has not filed sufficient evidence to prove her costs of $30,000, particularly in circumstances where she has been unrepresented in these proceedings.
I will issue orders that reflect the reasons given, bringing this matter to an end.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 19 May 2023
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