LAMBDIN & LAMBDIN

[2020] FCCA 773

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBDIN & LAMBDIN [2020] FCCA 773

Catchwords:
FAMILY LAW – Parenting – child support – applicant father seeks that his child support obligations be reduced together with certain ancillary orders in relation to the spend time regime whereby his children see him – mother seeks to change the parenting orders and to ensure that the father continues to pay as much child support as possible – orders made that the parenting plan made in 2017 remain largely in effect save that the Father be relieved from any obligation to pay for extracurricular activities and that X’s time with the father should be in accordance with her wishes.

Legislation:

Family Law Act 1975 (Cth), ss.63, 64B

Applicant: MR LAMBDIN

Respondent: MS LAMBDIN

File Number: CAC 576 of 2019

Judgment of: Judge Burchardt

Hearing date: 20 March 2020

Date of Last Submission: 20 March 2020

Delivered at: Dandenong

Delivered on: 6 April 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not applicable

ORDERS

THE COURT DIRECTS THAT:

1. The parenting plan made in 2017 remain in full force and effect, save that the Father be relieved from any obligation to pay for extracurricular activities and that X’s time with the father should be in accordance with her wishes.

THE COURT ORDERS THAT:

1. All extant applications be dismissed and the matter be removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

CAC 576 of 2019

MR LAMBDIN

Applicant

And

MS LAMBDIN

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a most unfortunate child support dispute between two people who like money as much as they dislike one another.  It is never agreeable, and indeed it should always be avoided if possible, to make findings about parties or witnesses that may be hurtful to them, but the nature of this dispute and the way the parties have run it (they are both self-represented) will make this impossible.

2. It should further be noted that the self-representation for the parties has meant that the case has been presented in a fashion that makes it difficult for the Court to fully understand the parties’ respective positions and, indeed, to make findings about the evidence. 

3. Put shortly, the applicant father seeks that his child support obligations be reduced together with certain ancillary orders in relation to the spend time regime whereby his children see him.  The mother seeks to change the parenting orders and to ensure that the father continues to pay as much child support as possible.

4. For the reasons that follow, I am going to leave the parties, essentially, where they are at the moment.  However, I will alter the regime in relation for the elder child who is due to turn 16 this year.

Agreed or uncontroversial matters

1. From the material the parties have filed, and in particular the first affidavit filed by the father on 23 March 2019, it seems uncontroversial that the father was born in 1975.  He is a professional employed by the Army.  The mother was born in 1971 and is a permanent part-time reservist, working 120 days per year, likewise in the Armed Forces.  Their relationship commenced in 2002 and they married in 2004.  Their daughter X was born in 2004 and their daughter Y was born in 2006.

2. The parties separated in May 2016 and were divorced in August 2017.  In June 2016, the mother relocated from Canberra where the parties have lived to Melbourne.  In January 2017, the father took a posting in Sydney and in January 2019, he returned to Canberra where he continues to work, and lives in service provided accommodation.  He married Ms A in 2018. 

3. The father’s Financial Statement gives a total average weekly income of just over $3,600 for himself and a weekly income of $2,311 for his wife Ms A.   

4. The father has around about $90,000 in the bank and the mother has an undisclosed amount which produces an income of $5,000 a year which given current interest rates suggests a figure in excess of $200,000, a figure with which the mother did not cavil when the matter was before the Court.

5. Both the girls are being educated privately and it would seem that the costs associated with this education exceed $30,000.  It appears that at the moment, the husband is paying 52 per cent of the children’s school fees and the wife pays 48 per cent.  She additionally pays for uniforms and a number of other matters.

6. The parties have recently been the subject of a child support assessment decision.  They have engaged in a number of such decisions in the past.  An application to vary child support made by the father was dismissed on 16 March 2020.

The matters in dispute

1. As I understand the matter (the parties both elected not to cross-examine the other but just to make oral submissions) the father seeks the orders set out at paragraph 17 of his affidavit filed 16 October 2019.  These are also repeated in his Application in a Case filed on 21 October 2019.  In his most recent affidavit, filed 13 March 2020, the father adds two further matters which are a requirement that the parents would consult each other regarding the children’s health arrangements and any planned overseas travel and that both parents will limit communication with the other to parenting matters alone. 

2. These matters are, by and large, consistent with a parenting plan to which it will be necessary to return.  However, the critical matters are firstly, that:

   a)The father seeks that the parties jointly share the costs of travel for the children to and from Canberra to live with him, rather than him paying all the travel.

   b)Further, he seeks that the mother pay 60 per cent of school fees and the father 40 per cent.

   c)And finally, that the father not contribute towards the children’s extracurricular activities.

3. The mother’s position, articulated in her response to the Application in a Case filed 24 October 2019 is that the father pay 60 per cent of private school fees and extracurricular costs and pay all interstate travel.  She also seeks that X’s time with the father be subject to her views.   

The parties’ affidavits

1. Much of the parties’ affidavit material is summarised in the agreed matters above.  Much of the affidavit material is merely self-serving, argumentative and critical by each party against the other.  Recurrent themes are criticisms by each of the parties of the decisions of the others to live where it has suited them to live. 

2. I note that the mother refers in her affidavit filed 11 May 2019 to a Financial Agreement made on 5 April 2019 pursuant to which she obtained 48 per cent of the available pool. That financial settlement has not in fact been exhibited to the Court.  It was plainly filed before Judge O’Sullivan in a proceeding which was on the previous file.  All the Court has from the parties is Annexure G to the father’s most recent affidavit which is correspondence sent by Quintessential Lawyers on behalf of the mother and signed by Mr Lambdin to Judge O’Sullivan’s chambers dated 4 April 2019.  There is a balance sheet next to that correspondence, but it does not assist in an understanding of the agreement.  I note there was a 50/50 division of superannuation and that it would seem that the husband had retained funds from the sale of the Country B properties (what that was worth was not indicated) and that the total pool was some $510,000. 

3. From the father’s affidavit filed 15 October 2019, it is apparent that the amount of time the children were spending with him had been reduced and this was giving rise to greater child support payments.

4. From the mother’s affidavit filed 23 October 2019, it is apparent that the amount of time the father had overnight care of X had reduced to 26 nights in 2019 because of X’s asserted lack of desire to spend that time with him.  The mother also referred to the father spending $500 per week for leasing a Motor Vehicle 1 for his wife.

5. From the mother’s affidavit filed 4 March 2020, it is apparent that the father is now paying 52 per cent of school fees.  The mother is paying 48 per cent plus uniforms and other matters.  X has not been to Canberra since April 2019.  I note that the mother appended part of a decision of the Administrative Appeals Tribunal (“AAT”) (the whole of which is annexed to the father’s most recent affidavit) during which matter the AAT recorded that the mother’s expenditure is less than her income and that both parties have elements of tax free income from Armed Forces.  Furthermore, it is noted that X has been diagnosed with anxiety and receives treatment.

6. I note that the father’s Financial Statement reveals superannuation in excess of $706,000.  He receives a $100 per week contribution from his wife Ms A towards the expenses of the car.  I further note that the father has given $160,000 to his wife to enable her to reduce a loan and thus afford expensive medical bills.

7. The father’s final affidavit filed 13 March 2020 recapitulates the extent of his child support contributions.  I note that there is a dispute as to who should pay for Y’s laptop and iPad.  He asserted that there was a cash settlement $220,000 in favour of the wife at the settlement in 2019. 

8. It will be apparent from the above that the Court faces some forensic difficulties. The Court does not have the final property settlement entered into between the parties in 2019, although the overall picture seems to be reasonably clear. Likewise, the Court does not have a Financial Statement from the mother. All that the Court file discloses is that the AAT in 2019 recorded that her expenditure was less than her income.

Parties’ submissions at Court

1. What follows is self-evidently not a transcript but a record of matters I found significant.

2. The father said he was trying to get a deal.  The mother had moved from Sydney to Melbourne.  He had agreed the parenting plan under duress but things deteriorated.  The onus was on him for everything.  He was paying for all the travel.  He has to pay to fly down.  The mother refuses to drop the children at the parental grandmother’s house.  The demand for extracurricular payments were unreasonable.  He sought the orders in paragraph 37 of his affidavit.

3. The mother said that the parties entered into a parenting plan in February 2017. Pursuant to that plan, she shared costs until January 2019. The father had chosen to live interstate. Things have only changed because he has remarried. She has primary care of the children. It was also agreed the father would pay for 60 per cent of the extracurricular and school fees. He put in for a change of assessment and sought the school fees be taken into consideration as part of the child support allowance. This had not been granted and she tendered a document which I provisionally marked as “-1” but it is now apparent that it is a decision of the Child Support Agency dated 16 March 2020 which is to the effect alleged.

4. Their younger daughter now also attends C School and this costs $2,000 more.  Because the father had not increased his contribution he was now paying 52 per cent and she was paying 48 per cent.  She sought the reinstitution of 60/40.  The eldest child is in year 10 and the younger in year nine. The parenting plan had 60 per cent for the father and to pay extracurricular expenses.  However, there are none at the moment and she therefore did not press that they continue to be included.  She wanted the father to pay 60 per cent of the cost of a laptop.  She pays for uniform costs and shoes and the like and pays for all books, which costs about $350 per year.  She pays for maths tutoring at $35 per fortnight.  She pays extracurricular activities in the sum of $2,500 per annum. 

5. The mother is employed in the Reserves for about 100-120 days per annum. She also receives Newstart. The AAT decision noted that her income was tax-free. She moved to Melbourne. Her brother died. She tried to maintain her permanent position. But she has always been part-time in Melbourne. Both children are anxious and the elder child sees a psychologist each fortnight. The father pays for two extra trips to Canberra, but the elder child won’t go to see him. There have been only two nights in recent times. The father pays for Y to spend four visits a year in Canberra but uses Velocity points to pay for them. On other occasions, he has driven. She has often driven to Suburb D herself for changeover. She seeks to remove the older child from the plan as the child is now 15. The father wants her to drive to Suburb D but she wants to meet halfway at Shopping Centre E. If this is not the case, she would drive to Suburb D.

6. The father has minimal costs in rent and savings of $90,000. He has given $160,000 to his new wife for an investment property. He went overseas last Christmas. The mother cannot work in the public sector and cannot work shifts, which would be required if she did. It is important that the children stay at their current schools. She wants to continue the parenting plan but she will pay all the extracurricular activities. She would like to state dates as in her Response document but let the elder child decide.

7. In reply, the father said he has chosen to live in Canberra. The AAT decision was out of date. The new assessment was also out of date as there are new school fees. 55 per cent of his pay goes to child support travel and school fees. He is not saving any money. There has been no Financial Statement from the mother. Her disposable income is more than his. She has money in the bank (it has emerged that the mother has in excess of $200,000 in the bank but she is trying to save up to buy a property).

8. The father has given $160,000 to his wife.  She could not afford her repayments and had health problems.  He is unable to save.  60 per cent of school fees would cost him $4,000 per month.  His money in the bank is from parachuting injuries.  The mother is not using money properly.  He referred to a broken iPad of his daughter’s. 

The parenting agreement

1. The parenting agreement which was made as it states, pursuant to section 63C of the Family Law Act 1975 (Cth) is Annexure A to the father’s affidavit filed 29 March 2019. By Recital D, “it is acknowledged that this parenting plan may only be varied or revoked by a later parenting plan, not by the court unless as a last resort an application is later made for a parenting order and the Court disregards the provisions of the parenting plan”.

2. The “live with” orders provided for children to spend 42 nights a year with the father in Sydney and for 17 nights a year in Melbourne. 

3. Clause 7 of the agreement provided that changeovers, essentially, take place at the paternal grandmother’s home in Suburb D. Clause 8 provided that the costs of travel to Sydney would alternate between the mother and father for the duration of the father’s posting in Sydney until January 2019 after which time, the father would bear the cost of any interstate travel.

4. Relevantly for these purposes, the parties agreed by clause 29 that the father would pay 60 per cent and the mother 40 per cent “of the children’s extracurricular activities and private schooling costs including fees, levies, electronic devices, camps and excursions only.”  By clause 30, it was expressly provided that those payments would be in addition to normal child support contributions. 

Consideration

1. One thing that is immediately apparent is that neither party has made any submissions to the Court as to under what head of power the Court has been asked to make the orders that the parties seek. This is not a review or direct reconsideration of the most recent decision of the Child Support Agency. Neither party made any reference to any of the Child Support legislation.

2. I have not been informed as to whether or not the parenting plan was, indeed, registered. However, it should be noted that while it may have been registered with the Court, it is not a registered parenting plan for the purposes of a section 63C(6) as it was plainly registered after 2003.

3. I should note, in passing, that an assertion made by the parties that they entered into the parenting plan under duress is not one I am prepared to accept (see section 63C(1A)) as there is no evidence to support such a finding.

4. In these somewhat unsatisfactory circumstances, it seems to me that the Court’s power is enlivened by the terms of the agreement itself which provide that an application may be made as a last resort for a parenting order. Section 64B(2) details matters which a parenting order may deal with and these include the time a child is to spend with a person and the maintenance of a child. These are the matters that are presently before the Court.

5. In a sense, what the parties really are seeking is an arbitration by the Court of their competing positions and although I retain some lingering doubt as to quite how much power I really have to do so, it is plainly in the children’s best interests, and indeed those of the parents, that the Court address the matters they have raised.

6. The first thing to be said is that neither of these parents have presented in a very satisfactory or attractive light in these proceedings.  No doubt they are both good and proper members of the community in the general sense, performing important work of national significance.  Before me, however, I regret to say, they present as almost mind-numbingly, penny-pinching and obsessed with disputes over terrain which given their overall finances are, in truth, are really very small.

7. The father is refusing to pay an extra 60 per cent of some $2,000 per annum in school fees.  This is a total of $1,200 per annum.  I notice his outrage expressed in his submissions filed by leave after the end of the proceedings about the most recent Child Support assessment that he was not awarded a decrease of $669 per annum.  For a man with a salary which appears to have beneficent tax components within it, in excess of $180,000 per year with a spouse who can earn in excess of $100,000, to be cavilling at amounts of this sort is quite extraordinary.  He said with evident emotion in his submissions that he is going backwards.  However, a man who can afford to give $160,000 to his wife, accepting as I am prepared to that she has significant medical issues, and who has $90,000 odd in the bank is in my view, in a financially very advantageous position.  Likewise, many in the community would be overjoyed to have superannuation of over $700,000 at his age.  

8. By the same token, while the mother no doubt does seek to buy a property, she has an excess of income over expenditure.  She has hundreds of thousands of dollars in the bank.  She could easily afford to pay for all this herself, in any event.  As I say, neither side presents themselves in an attractive light in this dispute.

9. In the end, I think that the just and equitable outcome is to leave the parties with the agreement that they voluntarily entered into in 2017.  The father should pay 60 per cent of the school fees and expenses save that the wife consents to him not paying any extracurricular activities.

10. The question of X’s time with the father, in my view, can be dealt with relatively shortly.  X will turn 16 in May.  At that age, the notion that she can be compelled to spend time with her father is plainly fanciful.  Time with the father should be in accordance with X’s wishes.  I note that the material before the Court establishes that X appears to be an anxious child.  There is no material to suggest that this anxiety is, as the mother asserts, relating to spending time with her father.  Nonetheless, a child of that age should not be and indeed cannot be compelled to spend time with either parent in any meaningful way.  The father’s time with X should be as per her wishes.

1. The final point in this unedifying dispute is the question of changeover.  The mother agreed to changeover at the paternal grandmother’s home in 2017.  There is no valid reason why that should change. 

2. Accordingly, I am going to direct that the parenting plan made in 2017 remain in full force and effect save that the father be relieved from any obligation to pay for extracurricular activities and that X’s time with the father should be in accordance with her wishes.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  6 April 2020