LAWSON and EDNEY
[2017] FCWA 77
•6 JUNE 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
CHILD SUPPORT (ASSESSMENT) ACT 1989
LOCATION: PERTH
CITATION: LAWSON and EDNEY [2017] FCWA 77
CORAM: WALTERS J
HEARD: 25, 26 & 27 JUNE 2014
DELIVERED : 6 JUNE 2017
FILE NO/S: PTW 126 of 2009
BETWEEN: MS LAWSON
Applicant
AND
MR EDNEY
Respondent
Catchwords:
FAMILY LAW – PARENTING ISSUES – Where parties unwilling to negotiate and compromise to focus on best interests of children – Case turns on its own facts
FAMILY LAW – CHILD SUPPORT – Where mother seeks child support departure order – Where mother also seeks lump sum child support – where child support aspect of proceedings poorly prepared – applications dismissed
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Adoption of Laws) Amendment Bill 2015 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)
Tribunals Amalgamation Act 2015 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr Marsh
Respondent: Mr Lafferty
Solicitors:
Applicant: Swan River Law
Respondent: Butcher Paull & Calder
Case(s) referred to in judgment(s):
Baker & Darzi [2017] FCWA 41
Bendeich (1993) FLC 92-355
Gyselman (1992) FLC 92-279
Harris & Ellis [2011] FamCAFC 90
Kemp & Parsons [2014] FamCA 865
Monie v the Commonwealth (2005) 63 NSWLR 729
Oscar and Traynor [2008] FamCA 95
Prpic v Prpic (1995) FLC 92-574
R & R (No.1) [2002] FMCAfam 153
Rollings & Rollings [2009] FamCAFC 87
Ross v McDermott (1998) 23 Fam LR 613
Saberton & Saberton [2013] FamCAFC 89
Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116
Warwick & Cutler & Anor [2016] FamCA 934
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1This case involved the living and financial arrangements for four children, [Child A], [Child B], [Child C] and [Child D]. At the time of the trial, Child A was 15, Child B was 13, Child C was 11 and Child D, 9. At the date of publication of this judgment, Child A is 18, Child B is 16, Child C is 14 and Child D is 12.
2The matter came before me for trial on 25 June 2014. It occupied three sitting days. The mother was represented by Mr Marsh and the father by Mr Lafferty of counsel. At the conclusion of the trial, I made some interim orders which were largely by consent ("the 2014 orders"). The 2014 orders related predominantly to the living arrangements for the children.
3On 27 June 2014, after the trial, I reserved my judgment.
4The 2014 orders were varied at the request of the parties on 13 June 2016 ("the 2016 orders"). The 2016 orders were made by consent.
5I now publish my Reasons in relation to any outstanding issues.
General Observations
6I am well aware of the delay between the completion of the hearing and the delivery of these Reasons. In Rollings & Rollings [2009] FamCAFC 87, the Full Court said at [67]:
The authorities .. establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not ... a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]: "extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge's findings or whether the trial judge's reasons are adequate".
7Similarly, the Full Court in Herridge & Handerson [2011] FamCAFC 156 said that the "real issue" may be –
… whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge's delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.
8Their Honours added at [22]-[23]:
If ... findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been "unsafe"... If it is demonstrated that his Honour's discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened. …
What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge's recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge's judgment to closer than usual scrutiny ...
9I accept that the parties are perfectly entitled to subject these Reasons to "closer than usual scrutiny". Having said that, I would record the following:
a)The delay in the delivery of these Reasons is not the fault of the parties or their legal advisers, who have taken appropriate steps to inquire as to the progress of the judgment.
b)My recollection of the parties' evidence (and that of their witnesses) has not been affected by the delay for two reasons: firstly, I made full notes of all relevant evidence and submissions during the course of the trial; and secondly, I have had the opportunity to listen to and read the transcript of the audio recording of the parties' evidence, the evidence of other witnesses (where clarification was required), and closing submissions. The last of which were both written and oral.
10It should be noted that neither party has sought to re-open the proceedings and provide the Court with any further evidence or to explain the present arrangements. The effluxion of time has impacted on my ability to address the present circumstances of the parties.
11By way of example, after the trial, the parties joined in seeking that I make an order for them, their partners and the children to attend upon Carol Smith ("Ms Smith"), Clinical Psychologist, for family therapy. I have no idea if, or how, that may have impacted on the family dynamics: see the 2014 orders at [6].
12The 2016 orders were different in certain respects to the orders sought by either party and agitated during the course of the three day trial two years earlier.
13In relation to the extant issues of child support and general financial arrangements for the children, I will deal with the effect of the delay specifically where relevant later in these Reasons.
Terminology and interpretation
14In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I referred to the parties as the "mother" and the "father" (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;
c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
d)although the law now refers to a child "spending time" with a person with whom the child does not live, I have used the obsolete term "contact" from time to time, because it is both more convenient and less grammatically challenging to do so;
e)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm");
f)Unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) - although, when necessary, I have referred to this enactment as "the Act" or the "FLA" ;
g)I have referred to the Child Support Registrar as "the Registrar" and the Child Support Agency as "CSA"; and
h)I have referred to the Child Support (Assessment) Act 1989 (Cth) as "the Assessment Act" and to the Child Support (Registration and Collection) Act 1988 (Cth) as "the Registration Act".
Brief background
15The father was born [in] 1973 and the mother was born [in] 1974. At the time of trial, they were in their early forties and they are now in their mid-forties. The father, at trial, was [an] [exercise physiologist] and the mother a [dietician].
16The parties met in 1993 and married [in] 1997. They separated on or around 2007 and they were divorced on 11 August 2009. During their marriage they had the four children briefly referred to previously ("the children"):
a) Child A, born [in] 1999;
b) Child B, born [in] 2001;
c) Child C, born [in] 2003; and
d) Child D, born [in] 2005.
17At about the time of separation, the mother commenced a relationship with [Mr Lawson]. The mother and Mr Lawson married [in] 2010. [In] 2011, the mother gave birth to a child, [Child E].
18Initially, following separation, the mother and the children remained living in the former matrimonial home, while the father moved out. The father says that he would often spend time with the children in the evenings at the former matrimonial home and that, during these times, the mother would leave the house. This continued until about October 2008.
19In 2008, the father commenced a relationship with [Ms Donovan]. They moved into their own accommodation in about October 2008 and from then until about November 2009 the father deposes the children had contact with him on about three nights a week.
20When the matter came to trial, Ms Donovan was a part-time [vice president] with a National [organisation] and Mr Edney was described as being a "[manager]".
21On 19 August 2009, the father filed an application for final orders relating to the four children of the marriage. Relevantly, the father sought orders for a week about living arrangement for the children.
22On 12 November 2009, the father filed an application, seeking a raft of orders in relation to the care of the children. These orders included that the children live with the mother and the father on a week about basis and the parties have equal shared parental responsibility.
23On 12 November 2009, the matter came before the Court. At that time, the parties were able to agree to a number of the orders sought in the father's application, including that the parties retain equal shared parental responsibility. There was no agreement how the children's time should be divided between their parents.
24On 22 January 2010, the Court made further orders by consent. Again, there was an order that the parties retain equal shared parental responsibility for the children. These orders provided that the children live with each parent on a fortnightly rolling cycle of two nights, two nights and then three nights. The orders also provided that the parties should not enrol the children in more than two extra-curricular activities during the summer season and one activity during the winter season. The parent who enrolled the children in an activity was to pay the cost of that activity. All previous orders were discharged and the application was dismissed.
25These orders remained in place until the mother filed a further application initiating proceedings on 5 November 2010 ("the 5 November 2010 application"). She sought orders in relation to the financial support of the children. In his response to that application filed 11 January 2011, the father sought the dismissal of the mother's application in relation to financial matters, but he sought to re-agitate the children's living arrangements.
26The mother filed a further application on 1 February 2011, seeking orders that Child A be enrolled in [a Perth Private High School] and the other children be enrolled, or continue to be enrolled at [a Perth Primary School]. (As each has entered secondary education, the mother has enrolled all the children in private schools.)
27On 1 February 2011, the Court ordered that, subject to the mother meeting the relevant costs associated with this, Child A be enrolled at a Perth Private High School. The other children were to continue at a Perth Primary School.
28The parties attended a Child Dispute Conference on 27 September 2011. The delegated Family Consultant prepared a report in which she recommended that the parties engage in regular external mediation in order to assist them to communicate. As a result, the parties did attempt some external family dispute resolution sessions, however, they were unsuccessful.
29[In] 2011, Ms Donovan gave birth to [Child F], her child with the father.
30The parties then sought the preparation of a Family Report. To that end, they contacted Ms Smith on 23 October 2012, requesting extensive family consultation and a report to assist the Court in relation to parenting issues. As a result, Ms Smith produced two reports – dated 3 April 2013 ("the first report") and 11 September 2013 ("the second report").
Documents relied upon
31The mother relied on the documents listed in her papers for the judge filed 19 June 2014. Those documents were as follows:
a)the mother's affidavits sworn 4 November 2010, 13 July 2012, 30 April 2014 and 26 May 2014;
b)affidavit of Mr Lawson, sworn 19 April 2014; and
c)the mother's financial statements sworn 4 November 2010, 13 July 2012 and 22 April 2014.
32The mother also relied upon the two reports of the single expert witness, and the report of the family consultant.
33The father relied on the documents listed in his papers for the judge, also filed 19 June 2014. Those documents were:
a) the father's affidavits sworn 11 January 2011, 17 July 2012 and 6 March 2014;
b) affidavit of Ms Donovan, sworn 12 February 2014; and
c) the father's financial statement sworn 6 March 2014.
The parties' proposals at trial
34At trial, the mother amended her proposal of equal shared parental responsibility to seek she have sole parental responsibility for all the children, and that they live with the father each fortnight from after school Friday to before school on Wednesday. She proposed that the children live with her at all other times.
35The mother also proposed arrangements for school holiday periods, and sought orders to the effect that the parties be at liberty to enrol each child in no more than two winter and two summer extra-curricular activities.
36The father's proposals at trial were that the parties should retain equal shared parental responsibility, and that there be an equal time arrangement (on a week about basis). He also sought various specific issues orders.
37On the first day of trial, the parties attempted to negotiate an agreement. Although they were unable to settle all matters in dispute, they were able to agree on some of them. Thus, the ambit of the dispute was narrowed. After hearing the evidence, I made orders to assist the children in their daily lives pending my judgment.
June 2014 orders
38It is helpful to set out in full all the 2014 orders, both by consent and not by consent.
1.As from 20 July 2014, [the children] live with the mother for 9 nights and with the father for 5 nights consecutively.
2.The mother be restrained by injunction from contacting the children by telephone on more than 2 occasions during each period that the children live with the father pursuant to these orders ("the father's contact time"), save for emergencies.
3.The father be restrained by injunction from contacting the children by telephone on more than 3 occasions during each period that the children live with the mother pursuant to these orders ("the mother's contact time"), save for emergencies.
4.Both parents be restrained by injunction from causing or permitting the children, or any of them, to be enrolled in any extra-curricular activity unless and until -
a)both parents agree, in writing, to the relevant child or children being enrolled in the said activity; and
b)each parent pays, as and when they shall fall due, one half of all costs directly associated with the relevant child or children being involved in the said activity.
AND IT IS ORDERED BY CONSENT THAT:
5. Both parents and their partners must -
a)attend and complete, as soon as practicable, the Mums and Dads Forever or other appropriate post separation parenting program ("the Program") at an organisation as nominated by the Director of the Family Court Counselling and Consultancy Service;
b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
c)pay and otherwise be responsible for all costs associated with the Program; and
d)provide an appropriate certificate of completion of the Program to the solicitors for the other parent.
6.The children, the parents and the parents' partners must undertake family therapy with Carol Smith or other agreed counsellor/psychologist as soon as practicable.
7.The children have liberty to contact the father during the mother's contact time by telephone/SMS at any reasonable time prior to 9 pm, and only otherwise in an emergency.
8.The children have liberty to contact the mother during the father's contact time by telephone/SMS at any reasonable time prior to 9 pm, but only otherwise in an emergency.
9.All communication between the parents – whether by telephone, text or email – must be responded to by the other parent within 24 hours.
10.The live with and time spend orders above be suspended during holidays so that, during the Christmas holiday period the children shall spend time with the mother and the father -
a)from 9 am Christmas Eve until 8 pm Christmas Eve in 2014 and in each alternate year thereafter - with the mother;
b)from 9 am Christmas Eve until 8 pm Christmas Eve in 2015 and in each alternate year thereafter - with the father;
c)from 8 pm Christmas Eve until 4 pm Christmas Day in 2014 and in each alternate year thereafter - with the father;
d)from 8 pm Christmas Eve until 4 pm Christmas Day in 2015 and in each alternate year thereafter - with the mother;
e)from 4 pm on Christmas Day until 5 pm on Boxing Day in 2014 and in each alternate year thereafter - with the mother; and
f)from 4 pm on Christmas Day until 5 pm on Boxing Day in 2015 and in each alternate year thereafter - with the father.
11.If one parent ("the travelling parent") so desires, the other parent ("the nontravelling parent") must allow the travelling parent to spend time with the children for an extended but otherwise reasonable period of time outside of the normal live with arrangements, for the purpose of enabling the travelling parent to take the children on holiday – and for that purpose the travelling parent must provide the non-travelling parent with a minimum of two weeks' notice in writing of any proposed holiday arrangements involving the children.
12.Consent to take the children on holiday pursuant to the preceding order shall not be withheld unreasonably by either parent.
13.The parent not spending time with the children be at liberty to telephone the child celebrating his/her birthday on the day of the child's birthday.
14.The parents must keep each other informed in a timely manner about -
a)any changes in the children's attendance at school; and
b)any extra-curricular activities in which the children are involved.
15.The mother must forthwith advise the father by telephone in the event of any of the children requiring emergency or major medical treatment or being involved in an accident whilst in her care.
16.The father must forthwith advise the mother by telephone in the event of any of the children requiring emergency or major medical treatment or being involved in an accident whilst in his care.
17.Until further order, the father, his servants and agents be restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother, family friends or family members; and
b)discussing these proceedings,
to, with or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
18.Until further order, the mother, her servants and agents be restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the father, family friends or family members; and
b)discussing these proceedings,
to, with or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
19.The parents be restrained by injunction from removing the children from school during the school term unless in an emergency or unless otherwise agreed between the parents from time to time in writing – consent for which must not be unreasonably withheld by either parent.
20.Unless otherwise provided for in these orders, all communication between the parents shall be via email, SMS, communication book or correspondence, and the parents be restrained by injunction from communicating with each other through the children in relation to pick up, drop offs, living arrangements, school arrangements or extra-curricular activities.
21.Notwithstanding all preceding orders, the children spend time with the mother from 8 pm on 6 July 2014 to 6 pm on 14 July 2014...
39It can be seen that the outstanding issues after trial and then requiring a decision were:
a) where the children should live;
b) with whom parental responsibility should repose;
c) the children's participation in extracurricular activities; and
d) the frequency of telephone contact.
June 2016 orders
40The ambit of these outstanding issues changed somewhat. In correspondence to the Court dated 4 April 2016, Mr Marsh sought an urgent listing "relating to amendment of child welfare orders and further information in relation to the unresolved additional child support orders sought at trial on 27 June 2014". The letter was accompanied by an application in a case, filed 5 April 2016. No responding documents were filed.
41The application in a case was listed on 13 June 2016. In spite of the fact that the father's solicitors filed a notice of ceasing to act on 27 April 2016, they continued to appear for him on 13 June 2016.
42At that hearing, and without making any submissions, both counsel joined in handing up a minute of consent orders they had negotiated. They asked that I make the agreed orders. Thus, I made the following orders by consent:
1.The [June 2014 orders] be discharged and substituted with the following orders.
2.The parents are to have equal shared parental responsibility for [the children] in relation to:-
a)marriage;
b)leaving school prior to year 12 completion;
c)major life threatening health issues;
d)emergencies; and
e)religion,
but otherwise [the mother] is to have sole parental responsibility for all other matters.
3.The children reside with the mother.
4.The children spend reasonable time with the father to include:
a)First weekend each month from after school Friday to start of school Monday or if no school then 5 pm Monday. In the event that the father is inter-state due to work on the first weekend then the contact shall be on the second weekend. Such time shall be suspended during term school holidays. The father shall ensure the children attend extra-curricular activities as per their enrolments.
b)Make up time shall be agreed for the Term 1 and 2 suspended time spent, such make up time to occur in the same month that it is suspended in.
c)From 8 pm Christmas Eve until 4 pm Christmas Day in 2016 and in each alternate year thereafter.
d)From 4 pm Christmas Day until 5 pm Boxing Day in 2017 and in each alternate year thereafter.
e)Reasonable telephone contact.
f)The father have the children the second week of the October school holidays from 5 pm Monday to 5 pm Sunday and for one week commencing the second Monday of January to the following Sunday at 5 pm with six week's notice of his ability to exercise that time.
5.The children have liberty to contact the father during the mother's contact time by telephone/SMS at any reasonable time prior to 9 pm, and only otherwise in an emergency.
6.The children have liberty to contact the mother during the father's contact time by telephone/SMS at any reasonable time prior to 9 pm, but otherwise only in an emergency.
7.The parent not spending time with the children be at liberty to telephone the child celebrating his/her birthday on the day of the child's birthday.
8.The parents must keep each other informed in a timely manner about:
a)any changes in the children's attendance at school; and
b)any extra-curricular activities in which the children are involved.
9.The mother must forthwith advise the father by telephone in the event of any of the children requiring emergency or major treatment or being involved in an accident whilst in her care.
10.The father must forthwith advise the father by telephone in the event of any of the children requiring emergency or major treatment or being involved in an accident whilst in his care.
11.Until further order, the father, his servants and agents be restrained by injunction from :-
a)abusing, insulting, rebuking or otherwise denigrating the mother, family friends or family members; and
b)discussing family court proceedings relating to the parties,
to, with or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
12.Until further order, the mother, her servants and agents be restrained by injunction from :-
a)abusing, insulting, rebuking or otherwise denigrating the mother, family friends or family members; and
b)discussing family court proceedings relating to the parties,
to, with or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
13.Unless otherwise provided for in these orders, all communication between the parents shall be via email, SMS, communication book or correspondence, and the parents be restrained by injunction from communicating with each other through the children in relation to pick up, drop offs, living arrangements, school arrangements or extra-curricular activities.
14.The father shall take the children to all extra-curricular activities they are engaged in during his time spent and if unavailable shall give to the mother the ability to facilitate those activities.
15.For the purposes of para 4(a) the term "weekend" shall mean the first Friday of the month.
43The matter was otherwise adjourned (again) for the delivery of judgment.
44In correspondence to the Court dated 6 September 2016, the mother's counsel sought clarification of when a decision would be made in relation to the costs of the children's schooling and the child support issues. It is noted that in the correspondence Mr Marsh wrote:
The parties have amended the child welfare orders by agreement on 13 June 2016 but otherwise await a decision on the child support issues.
45The 2016 orders were made without any discussion between counsel and the bench as to their content. It appears that, despite the orders coming before the Court by way of the mother's Form 2 application and being described as interim child welfare orders, the 2016 orders (save, perhaps, for paragraphs 11 and 12) were intended to represent orders of some finality.
46Having regard to the 2016 orders, I am satisfied that no further orders relating to the children's living arrangements are required. However, having heard evidence over the course of three days, I will consider the 2016 orders and whether they are, in fact, best for the children.
Are the 2016 orders in the children's best interests?
Parental Responsibility
47When making a parenting order, the Court must apply a presumption that it is in the children's best interests for their parents to have equal shared parental responsibility: s 61DA(l). Such a presumption, although clearly important, says nothing about the amount of time that the children should spend with each parent.
48The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the children (or another relevant child), or has engaged in family violence: s 61DA(2).
49In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility: s 61DA(4).
50In Oscar and Traynor [2008] FamCA 95, Murphy J said at [260]:
It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children's best interests.
51Murphy J's comments are particularly relevant in the current proceedings, where the degree of distrust between the parties is significant. Having heard the evidence, I consider it highly unlikely that they could work together to make decisions in the best interests of the children.
52Historically, each of the parties has sought orders for equal shared parental responsibility. In fact, interim orders have been made on a number of occasions whereby equal shared parental responsibility has been maintained.
53It was clear to me from the commencement of the trial, however, that the continuation of equal shared parental responsibility was untenable. Regrettably, both parties had a propensity to focus on their own needs at the expense of the needs of the children. This was compounded by their unwillingness to negotiate constructively, to compromise their respective positions and to discuss civilly what might be best for the children.
54In these circumstances, the mother (understandably) made an oral application to amend her position to have sole parental responsibility for the children. This amendment was sought on the first day of trial. I gave the mother the leave she required to make such an amendment.
55In the first report, Ms Smith identified a high degree of animosity between the mother and the father. She noted that the parents themselves acknowledged they had different parenting styles: the mother considers she is more permissive and relaxed, while the father accepts he is more authoritarian and routine orientated.
56The findings in the first report were largely unchanged in the second report. Ms Smith identified a high level of incompatibility and hostility between the parties, which made ongoing communication difficult.
57The 2016 orders deal with parental responsibility. I am greatly heartened that the parties were able to agree a reasonable position in this regard. The fact that they were able to agree such a position and resolve that certain matters should be decided jointly, but otherwise the mother should have sole parental responsibility, indicates to me that they considered the question sensibly and responsibly. The parties were able to present a solution that is in the children's best interests, given where they are to be living for most of the time. The orders also appropriate having regard to the ages of the children.
58The significant entrenched conflict between the parties in relation to educational and medical needs clearly prevents an order for equal shared parental responsibility in those specific areas. The issues isolated by the parties are issues that I am confident can be agreed.
59I find that the presumption set out in the FLA (in other words, that it is in the children's best interests for their parents to have equal shared parental responsibility), should continue to apply – but only as it relates to the issues identified.
Equal time or substantial and significant time
60Based on the evidence at trial, and without more, I would have made the 2014 orders on a final basis. Those orders reflected a fortnightly sharing of the children, such that they lived with the mother for nine days and with the father for five days. This was what the mother sought and was, in my view, appropriate in all of the circumstances. It increased the time the children had with their father but allowed them to have a stable base. The father accepted it was an appropriate starting point for his time with the children.
61Ms Smith reported that the children had a closer relationship with their mother, but three of them did not report a strong preference for where they wanted to stay. The children, especially the elder three, wanted to improve their relationship with their father. She opined that a nine day/five day split of time would suit the children and the family dynamics. Neither party wanted to separate the children in the contact arrangements.
62Ms Smith said that both parties were capable of caring for the children. She had no concerns about their parenting skills. She said they each had a different skill set, but that both were adequate. She also said both parents had a positive effect on the children.
63One of her concerns about an equal sharing of time was the high level of conflict and disagreement between the parents. They were unable to be flexible and responsive in terms of child care arrangements. She was clearly troubled by their inability to coparent, and to coordinate the children's activities.
64One of the benefits of the nine day/five day arrangement is that it prevents the multiple comings and goings of the earlier rolling orders of 22 January 2010 – which were clearly not in the children's best interests and provided little more than an ongoing source of dispute and friction for the parties.
65The 2016 orders reflect a completely different contact arrangement. At the time of preparing these Reasons, the Court is unaware of the parties' or the children's current circumstances. Historically, the father has travelled for work and that may well be the case now. However, there may be other reasons that caused the parties to see fit to reduce the contact ordered in the 2014 orders.
66The relevant June 2016 order for consideration here is para 4: that "the children spend reasonable time with the father to include ..." (emphasis added).
67In the absence of the 2016 orders, and based on the evidence at trial, I would have maintained the fortnightly nine days/five days arrangement. Without any current evidence as to the parties' and the children's present circumstances, however, and given that I am also without any evidence as to the parties' current relationship, I will not do that at this time. I note that the 2016 orders reflect that the children spend reasonable time with their father, and that contact is not necessarily restricted to the monthly time specified: what may be perceived as reasonable time includes that period. There is room for the parties to agree further contact if appropriate.
68I will make modest amendments to the drafting of the particular order to reflect the current legislation, and what I consider to be appropriate terminology or arrangements.
Extra-curricular activities
69This was a very contentious matter during the course of the trial. The father's concern was that the children were enrolled in far too many extracurricular activities and that this was likely to be at the expense of time spent on their schoolwork and their education generally.
70The mother was keen to facilitate the children having every opportunity to participate not only in a great variety of sports, but sports that the children identified as being pleasurable to them.
71The 2016 orders reflect sensible arrangements in relation to such activities.
Specific issue orders
72The other provisions of the 2016 orders are uncontentious, and are in line with the children's best interests. They require no explanation or further discussion.
Conclusion on children's living arrangements
73Given that the parties were able to agree to the 2016 orders – which orders I consider to be in line with the children's best interests (although subject to my comments above) – I do not intend to make any further orders about parenting issues. If there is any significant change in the children's circumstances, then the parties are able to bring their difficulties back to the Court. Thus, I propose to make an order which allows the parties a small window of opportunity to raise any outstanding issues in relation to parenting issues, failing which all extant applications in that regard will be dismissed.
Child Support and Financial Arrangements
74At this time, the outstanding issues for the Court to decide simply relate to financial matters concerning the children – relevantly, the payment of private school fees and education expenses, medical costs and periodic child support.
Brief background of CSA involvement
75At or about the time of separation, the mother applied to the CSA for an administrative assessment of child support. An assessment was duly issued (dated 27 May 2008). The father was required to pay $10,524 per annum for the assessment period 1 July 2008 to 20 April 2009.
76In October 2008, and based on the father's 2008 taxable income, the CSA reduced the quantum of child support to $717 per month (being $8604 per annum) – for the assessment period 1 November 2008 to 31 January 2010.
77Shortly afterwards, the mother was advised that her child support payments were again to be reduced, having regard to the amount of time the children were spending in the father's care. The reassessed child support calculations were as follows:
a) $877 per month for the period 1 July 2008 to 15 October 2008;
b) $657.67 per month for the period 16 October 2008 to 31 October 2008; and
c) $537.67 per month for the period 1 November 2008 to 31 January 2010
78In August 2009, the father made an application to the CSA seeking a further reduction in the rate of child support he had been assessed to pay.
79In early September 2009, the mother lodged a cross-application – on the basis that the costs of maintaining the children were significantly affected by their special needs. The special needs referred to by the mother at that time were speech pathology (required for Child D), counselling (required to assist Child A to deal with the separation) and dental treatment (for all four children).
80The parties then participated in a conference on 15 September 2009, at which the application and cross application were discussed ("the 2009 conference").
81Whilst awaiting the decision arising from the 2009 conference, the mother received two further child support assessments (both dated 6 October 2009):
a)the first required a payment of $343 per month for the period 11 December 2008 to 31 October 2009; and
b)the second required a payment of $569 per month for the period 1 November 2009 to 31 January 2011.
82In a Notice of Decision dated 14 October 2009 ("the 2009 Decision"), both the father's application and the mother's cross-application were refused on the basis that changing the assessment would not be fair or equitable to either the mother, the father or the children.
83Although the 2009 Decision speaks for itself, I note the following:
a)During the 2009 conference, the father agreed to share the costs of any out of pocket expenses incurred by the mother in catering for the children's special medical needs, if he was provided with invoices. The special needs specifically discussed were dental expenses. Given the father's concession in this regard, the Senior Case Officer, a delegate of the Registrar, wrote that if this did not occur, the mother would have liberty to return to the CSA for an increased assessment.
b)Findings were made that –
i)the mother's income for child support purposes was significantly higher than the amount she used in the assessment; and
ii)the father was then operating a business under the name of his de facto partner.
84As a result of the 2009 Decision, the extant assessment (described as relating to the period 11 December 2008 to 31 January 2010) was left unchanged – at the rate of $4116 per annum (or $343 per month).
85On 20 November 2009, a further assessment issued, relating to the period 1 November 2009 to 31 January 2011. The quantum of child support was fixed at $964 per annum, or $80.33 per month.
86On 30 November 2009, the mother lodged an objection to the 2009 decision. The Objection Decision is dated 4 February 2010. It speaks for itself. The terms of the decision were as follows:
a)the 2009 decision was set aside with effect from 1 November 2009;
b)the mother's adjusted taxable income was set at $32,258 for the period 1 November 2009 to 30 September 2012; and
c)the father's adjusted taxable income was set at $60,000 for the same period (being 1 November 2009 to 30 September 2012).
87On 17 March 2010, the mother was notified that her child support payments would again be changed, due to the amount of time the children were in the care of each party. The relevant child support assessments were as follows:
a)$4636 per annum (or $386.33 per month) for the period 1 November 2009 to 14 December 2009; and
b)$3612 per annum (or $301 per month) for the period 15 December 2009 to 31 January 2011.
88The parties continued to object to assessments made with varying degrees of success on each occasion.
89The mother filed the 5 November 2010 application to deal with financial matters relating to the children. She sought that the father contribute 50% of private school fees for the children. She also sought that the father pay 50% of the children's private medical insurance and 50% of the reasonable expenses of the children (both past and future) for school, sport and related expenses, excursions, books, school clothing, music, other lessons and educational expenses, extra-curricular activities and incidental expenses, medical, dental and other health expenses, including private and medical insurance.
90The mother stated that any non-periodic child support payable to her was not intended to reduce the annual rate of child support payable under any periodic assessment.
The parties' proposals at trial
91In her papers for the judge filed 19 June 2014, the mother sought "additional child support orders" that the parties each pay 50% of the total of private school fees owed to a Perth Private High School for Child A and Child D, and 50% of the total private school fees in respect of Child B and Child C.
92The mother also sought that the father pay "further support", being 50% of reasonable school related expenses for the children – including sports costs and incidental expenses, excursions, books, school clothing, music lessons, other lessons and educational expenses. In addition, she sought that he pay 50% of medical, dental and other health expenses, including "private and medical insurance". On the second day of trial, she abandoned her claim for orders to the effect that the father pay a share of the cost of extra-curricular activities.
93The mother also sought that the father pay 18% interest per annum on any money that was outstanding in relation to past and future accounts. Her application of 5 November 2010 sought 6% interest on any such amount for the children.
94On 26 June 2014, the mother made an oral application to amend her claim. She sought to introduce a claim that the father pay periodic child support of $300 per week (apportioned amongst the children) from 1 March 2010 and ongoing. This amendment and quantification occurred on the second day of the trial, without prior notice. The mother's written closing submissions filed 3 July 2014 seem to suggest that the $300 would also include future medical expenses for the children.
95The father sought that that mother's application in this regard be dismissed. At trial, he said he would pay 50% of all medical and dental costs, on the basis that he was provided with adequate information on the actual cost and need for treatment.
Introductory comments
96The child support aspect of the proceedings was poorly prepared and inadequately defined. There was a failure by the mother to construct her case around the applicable and necessary legislative framework of the Assessment Act. The pathway she proposed was far from clear.
97I made it plain from the very beginning of the trial that, given the ad hoc approach to this issue, it would not be an easy matter to persuade me to embark on a detailed analysis of the parties' financial circumstances. Regrettably, the parties' approach made it impossible to deal with the various applications in the manner required by the child support legislation.
Child Support – The Law
98The process involved in the consideration of an application for departure from an administrative assessment of child support was explained by the Full Court in Gyselman (1992) FLC 92-279 at 79,064-5. The Full Court said (inter alia):
Section 117 is the critical provision.
The structure of that section is that section 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
•Whether one or more grounds of departure in section 117(2) is established.
If so
•Whether it is 'just and equitable' within the meaning of section 117(4) to make a particular order.
•Whether it is 'otherwise proper' within the meaning of section 117(5) to make a particular order.
It is clear from the careful way in which section 117 has been structured that the Court must address each of those three separate issues...
… Each of those grounds [in section 117(2)] is prefaced by the words, 'in the special circumstances of the case'. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. [It has been held] that 'special circumstances' were 'facts peculiar to the particular case which set it apart from other cases'. The approach to the interpretation and application of the particular grounds in section 117(2) must be guided by that qualification.
99It is clear from the decision in Gyselman that the Court is not obliged to "slavishly go through" each of the considerations in s 117(4). Nor is it necessary to adopt such an approach in relation to the matters referred to in s 117(5). In essence, the Court is obliged to adopt "a practical and flexible approach" to the consideration of the matters referred to in ss 117(4) and (5): see Ross v McDermott (1998) 23 Fam LR 613 at 623-4.
100It may be useful, at this stage, to set out the provisions of s 117(4) and (6) of the Assessment Act:
4.In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
a)the nature of the duty of a parent to maintain a child…; and
b)the proper needs of the child; and
c)the income, earning capacity, property and financial resources of the child; and
d)the income, property and financial resources of each parent who is a party to the proceeding; and
da)the earning capacity of each parent who is a party to the proceeding; and
e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
i)himself or herself; or
ii)any other child or another person that the person has a duty to maintain; and
f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
g)any hardship that would be caused:
i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
...
6.In having regard to the proper needs of the child, the court must have regard to:
a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
b)any special needs of the child.
101Although it is not necessary to "slavishly go through" each of the considerations in s 117(4), those considerations cannot simply be ignored. Thus, and without intending to provide a comprehensive summary of the subsection, the Court should (at the very least) direct its attention to the following questions:
a)What is a fair allowance for the total, overall costs incurred by both parents in maintaining the children, and do those costs represent the children's proper needs? If not, what is a fair allowance for the children's proper needs?
b)What is the overall financial position of the children themselves? In other words, do the children or any of them earn income, have an earning capacity or have property or financial resources?
c)What is the overall financial position of each of the parents of the children? What is the income of each parent, what property do they have and what are their financial resources?
d)Irrespective of a party's actual income, what is each party's earning capacity (bearing in mind that the approach to assessing a party's earning capacity is further refined in other provisions within s 117(4))?
e)What are the commitments of each of the parents that are necessary to enable them to support themselves and anyone else that they have a duty to maintain?
102Assuming the questions posed in the previous paragraph – and any other relevant questions raised as a result of the proper application of s 117(4) – have been answered to the best of the Court's ability and in accordance with the evidence before it, the Court can assess how the responsibility for meeting the children's proper needs should be allocated between the parents. This allocation ultimately defines the quantum of child support payable by the liable parent.
103A helpful summary of the approach which should be adopted (by the SSAT – now the AAT – and, if appropriate, by a judicial officer) is contained in the decision of Riethmuller FM (as his Honour then was) in Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116.
104I was recently required to consider the role of this Court in child support proceedings generally. In Baker & Darzi [2017] FCWA 41, I wrote the following:
104.Finally, it is pertinent to observe that the role of the Family Law Courts in relation to child support proceedings is now very different from that which they performed in the past. Judicial officers are no longer required to laboriously reassess a party's child support obligations unless it is clearly sensible and appropriate for them to do so. The Government now envisages a very different role for courts (relevantly, the Federal Court of Australia and the Federal Circuit Court of Australia): namely, to deal with appeals from the AAT. Such appeals involve the application of administrative law, and not the direct application of provisions such as s 117 of the Assessment Act. Put another way, in many respects the remedies of parties involved in child support disputes have changed. Leaving aside (for the moment) applications for lump sum child support and similar relief, where once parties could require a judicial officer to hear and consider evidence relating to, for example, the plethora of factors or considerations set out in s 117, they must now demonstrate an error of law on the part of the AAT.
105.I refer to the Federal Court of Australia ("FCA" ) and the Federal Circuit Court of Australia ("FCCA" ) (as opposed to this Court), because the Family Court of Australia ("FCoA" ) and the Family Court of Western Australia no longer have jurisdiction to hear appeals from the AAT in relation to child support. Such appeals must be directed to the FCCA (or, in some cases, the FCA).
106.This Court, the FCoA and the FCCA still retain original jurisdiction in child support matters: see, for example, s 99 of the Assessment Act. Similarly, the FCoA also retains appellate jurisdiction in relation to substantive child support issues: see, for example, ss 101, 102 and 102A of the Assessment Act. As well, this Court, the FCoA and the FCCA have power to deal with applications for orders for departure from administrative assessments of child support – but s 116(1) of the Assessment Act provides that the exercise of the power is conditional upon the following (both of which must apply):
a)the liable parent or carer entitled to child support must be a party to an application pending in the relevant court; and
b)the relevant court must be satisfied that it would be "in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under [Division 4 of Part 7 of the Assessment Act] in relation to the child in the special circumstances of the case".
107.It is important to note that this Court, the FCoA and the FCCA also have power to deal – at first instance – with applications for the provision of child support otherwise than in the form of periodic payments made to the child's carer. This power is not subject to the conditions set out in s 116(1) of the Assessment Act. Thus, and by way of example, s 123 of the Assessment Act is as follows:
Application for order under Division (being Division 5 of Part 7 of the Assessment Act)
1.An application may be made to a court having jurisdiction under this Act for:
a.an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
b.an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
2.An application under subsection (1):
a.may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
b.may be made by the carer entitled to child support or the liable parent.
3.Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
4.…
108.It is, of course, this power upon which the wife relies when applying to this Court for the orders contained in the amended application.
109.Now is not the time to analyse the history of the various amendments to the child support legislation which have given rise to the current jurisdictional peculiarities. Suffice it to say that this Court previously had jurisdiction to hear appeals in child support matters when those appeals were from the SSAT – in other words, prior to 1 July 2015. This Court's jurisdiction in that regard was to be found in s 110B of the Registration Act, which section was repealed in July 2015 upon the commencement of the Tribunals Amalgamation Act 2015 (Cth) ("the Amalgamation Act" ). The Amalgamation Act folded the SSAT, the Migration Review Tribunals and the Refugee Review Tribunals into the AAT. Thereafter, child support review matters were to be dealt with by the Social Services and Child Support Division of the AAT. The Amalgamation Act also inserted s 44AAA into the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act" ). This section provides that, ordinarily, appeals from the AAT in child support matters are to the FCCA – on a question of law only. Any other appeals from the AAT in child support matters are to the FCA – again, on a question of law only: see s 44 of the AAT Act.
110.The transfer of jurisdiction in matters of this nature from the FCoA and this Court to the FCA and the FCCA was deliberate. For example, the Explanatory Memorandum relating to the Child Support (Adoption of Laws) Amendment Bill 2015 (Cth) includes the following:
[The Amalgamation Act] impacts on the Commonwealth Child Support Scheme by changing the avenues of appeal for child support matters.
The former SSAT had jurisdiction to review on the merits certain administrative child support decisions to which objection had been taken and the internal review unsuccessful. An appeal from SSAT to the AAT was available on some matters for a review on the merits. The Family Court had jurisdiction to hear an appeal against a decision of SSAT on a question of law. [The Amalgamation Act] transfers that jurisdiction of the Family Court to [the FCCA and the FCA].
…
... [New] specialist divisions added to the AAT ... Include the Social Services and Child Support Division ...
Prior to its abolition, applications for a merits review of certain child support decisions were made to SSAT. Some decisions of SSAT could be reviewed by the AAT. Appeal to the Family Court was available from the decision of SSAT but restricted to a question of law.
[The Amalgamation Act] transfers the merits review jurisdiction from the SSAT to the AAT and the appeal jurisdiction of [the FCoA] in respect to child support matters to [the FCCA and the FCA] under the [AAT Act].
Matters previously determined by SSAT will now come under the jurisdiction of the Social Services and Child Support Division of the AAT...
I certify that the preceding [136] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
6 June 2017
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