LINCOLN & RYAN

[2011] FMCAfam 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LINCOLN & RYAN [2011] FMCAfam 841

CHILD SUPPORT – Whether agreement entered into in September 2007 should be set aside – whether departure order should be made – meaning of exceptional circumstances – capacity of either party to pay – whether child support agreement should be varied.

FAMILY LAW – Parenting – whether final parenting orders made by consent in September 2007 should be varied – consideration of Rice & Asplund principles.

Family Law Act 1975, ss.60CA, 60B, s.60B(1)(a) and (b), 60CC, 60CC(2)(a)–(b), 60CC(3)(a)-(l), 60CC(4), 61DA, 61DA(4), 65DAA(1)
Child Support (Assessment) Act 1989, ss.95, 111, 117(1), 117(2)(b)(ii), 117(2)(c)(ia), 118, 136(2), 136(2)(d)
Child Support Legislation Amendment (Reforms of the Child Support Scheme – New Formula and Other Measures) Act 2006

Daley & Daley [2009] FMCAfam 398
Gallup & Gallup [2009] FMCAfam 839
In the Marriage of Sandrk (1991) 15 FamLR 197
Neville & Neville (2010) FLC 98-055; [2010] FMCAfam 1162
Rice and Asplund (1979) FLC 90-723
SPS v PLS [2008] FamCAFC 16
Venson & Venson (No.2) [2010] FamCA 963
Zabaneh, In the Marriage of (1986) 11 Fam LR 167l; FLC 91-766

Applicant: MS LINCOLN (FORMERLY RYAN)

Respondent: MR RYAN

File Number: MLC 11245 of 2007

Judgment of: Whelan FM

Hearing dates: 16 & 17 February 2011, 9 March 2011

Date of Last Submission: 12 April 2011

Delivered at: Melbourne

Delivered on: 18 August 2011

REPRESENTATION

Counsel for the Applicant: Ms Stoikovska

Solicitors for the Applicant: Kennedy Partners

Counsel for the Respondent: Mr Cole

Solicitors for the Respondent: Monash Oakleigh Legal Service

ORDERS

PARENTING

1. Paragraphs 1 to 9 (inclusive) of the orders made by the Federal Magistrates Court of Australia on 12 September 2007 be discharged.

2. The father and the mother have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) (collectively “the children”).

3. Each party have parental responsibility for the making of decisions concerning the day-to-day care, welfare and development of the children while the children or any one of them are in their respective care.

4. The children live with the father from:

   (a)In each alternate week from 6.00pm on the Monday until 6.00pm on the following Monday pursuant to the current parenting arrangements; and

   (b)As otherwise agreed between the parties.

5. The children live with the mother at all other times.

6. The father spend time with the children during school holidays as follows:

   (a)For one half of all school term holidays as may be agreed between the parties and in default of agreement for the first half of each of the said school term holidays in 2012 and in each alternate year thereafter, and for the second half of the said school term holidays in 2011 and in each alternate year thereafter.

   (b)During the long Christmas school holidays:

   (i)Subject only to sub-paragraphs (6)(b)(ii) – (6)(b)(vi), on a week about basis during the said holidays, and for this purpose, the said school holidays shall be deemed to commence at 10.00am on the day following the last day of the school term and to conclude at 10.00am on the day prior to the school year resuming, and for the purposes of this order, the wife shall have the first week of the said holidays.

   (ii)Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the wife during the following periods:

   A.From 4.00pm on Christmas Day in 2012, and in each alternate year thereafter, until 4.00pm on 8 January in 2013 and in each alternate year thereafter; and

   B.Between 4.00pm on 8 January 2012 and 4.00pm on 22 January 2012 and in each alternate year thereafter.

   (iii)Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the husband during the following periods:

   A.Between 4.00pm on Christmas Day in 2011, and in each alternate year thereafter, until 4.00pm on 8 January 2012 and in each alternate year thereafter; and

   B.From 4.00pm on 8 January 2013 until 4.00pm on 22 January in 2013, and in each alternate year thereafter.

   (iv)Notwithstanding any provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the husband from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in 2012 and in each alternative year thereafter.

   (v)Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the wife from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in 2011 and in each alternative year thereafter.

   (vi)At any other times as may be agreed between the parties.

7. The mother spend time with the children as follows:

   (a)On Mother’s Day between 10.00am and 5.00pm, or as otherwise agreed, if the children are not otherwise spending time with her; and

   (b)On the mother’s birthday between after school and 7.30pm if the birthday falls on a weekday that the children would not otherwise be spending time with her or between 10.00am and 5.00pm if the birthday falls on a weekend that the children would not otherwise be spending time with her.

8. The father spend time with the children as follows:

   (a)On Father’s Day between 10.00am and 5.00pm, or as otherwise agreed, if the children are not otherwise spending time with him; and

   (b)On the father’s birthday between after school and 7.30pm if the birthday falls on a weekday that the children would not otherwise be spending time with him or between 10.00am and 5.00pm if the birthday falls on a weekend that the children would not otherwise be spending time with him.

9. The parent who is not otherwise spending time with the children on their birthdays is to spend time with the children as follows:

   (a)From after school until 6.30pm if the child’s birthday falls on a weekday; or

   (b)From 10.00am to 1.00pm if the child’s birthday falls on a weekend; or

   (c)As otherwise agreed.

10. Each of the parties shall facilitate any reasonable request of any one of the children or the other party to communicate by telephone or email with the other party when the children or any one of them are in the care of the first party.

11. Subject to paragraph (14) herein, each party shall advise the other by email as and when is necessary to do so of any matters relating to the children’s health, education, and other child welfare issues, while the children or any one of them are in the care of the other party.

12. Each party shall ensure that the children or any one of them attends their existing and compulsory extracurricular activities, or any future extracurricular activities which the parties agree in writing that the children should engage in, at times when the children or any one of them are in the care of that party.

13. Each party do all such acts and things and sign all such documents as may be necessary to permit each of the parties to:

    (a)Obtain from any school or educational institution attended by any one of the children copies of their school reports, newsletters and like communications normally sent to parents;

    (b)To enable each of the parties to attend parent/teacher nights at any school or educational institution attended by any one of the children; and

    (c)To enable either of the parties to attend any prize night, sporting event, or extracurricular activity engaged in by any one of the children.

14. Each party shall as soon as practicable advise the other party of any serious health or medical issue affecting any one of the children while that child is in the care of the first party.

15. Each party do all such acts and things and sign all such documents as to enable each of the parties to communicate with any medical practitioners or health professional who has been or who will be providing treatment to any one of the children.

16. Each party is restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other or the other’s family members to or in the presence or hearing of the children, and from permitting any other person to do so.

17. Within fourteen (14) days of the making of these orders, each party do all such acts and things and sign all such documents as may be necessary to obtain a passport for each of the children, with such passports to remain in the possession of the mother subject only to the terms of these orders.

18. Either party shall be at liberty to travel with the children overseas during a period of time that the children are in the care of that party during school holiday periods, upon the condition that:

    (a)The party proposing to travel with the children provides the other party in writing not less than thirty (30) days notice of his or her intention to travel; and

    (b)The party proposing to travel provides to the other party not less than thirty (30) days prior to the proposed departure, and in writing, a travel itinerary and contract details for the travelling party and the children while they are overseas.

19. To facilitate overseas travel pursuant to the terms of these Orders:

    (a)The mother shall ordinarily retain the passports of the children.

    (b)If the father is proposing to travel with the children, the mother will comply with any reasonable request by the father to have the passports for the sake of obtaining visas or to engage in the said overseas travel.

    (c)Within seven (7) days of the father returning with the children to Australia, the father shall return the passports for each of the children to the mother.

20. Pursuant of section 13C of the Family Law Act 1975 the mother and the father:

    (a)Attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;

    (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 other parties or their solicitors.

CHILD SUPPORT

1. Leave be granted under s.111 of the Child Support (Assessment) Act 1989 to the father to seek a variation under s.118 of his child support obligations for the financial year 2006-2007.

2. For the financial year of 2006 – 2007, the father’s taxable income be assessed at $37,780.00.

3. The father’s representatives serve a copy of these Orders on the Child Support Agency as soon as practicable.

4. All other applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 11245 of 2007

MS LINCOLN (FORMERLY RYAN)

Applicant

And

MR RYAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the mother, MS LINCOLN (FORMERLY RYAN) (“the mother”), to vary the parenting orders made by consent in September 2007 with respect to the three children of the marriage [X] born [in] 1997 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) (or collectively “the children”). The mother also seeks that the Child Support Agreement entered into by the parties in September 2007 be set aside and a departure order made in relation to the father’s liability to pay child support.

2. The father, MR RYAN (“the father”), opposes the orders sought, with the exception of some slight variations to the existing parenting orders. He further seeks orders of the Court under s.111 and s.118 of the Child Support (Assessment) Act 1989 (Cth) with respect to his assessable income for the year 2006 – 2007.

Background

1. The parties commenced cohabiting in September 1993 and married in November 1995. They separated in June 2006. Following proceedings commenced by the mother in October 2006, interim orders were made by Federal Magistrate Hughes which provided for the children to live with each of the parties on a week about basis. In September 2007, final orders were made by consent providing for the children to live with each parent on a week about basis during the school term with changeover at 6.00pm on Monday. The orders also made provision for school holidays and special occasions.

2. In December 2006, the mother commenced cohabitation with Mr L and married him in March 2008. He has two children, [A] born [in] 2002 and [B] born [in] 2004. Under current parenting orders, these children live with the mother and Mr L each alternative Wednesday until the following Monday and for half of the school holidays.

3. The parties agree that the principles in Rice and Asplund (1979) FLC 90-723, as applied by the Court in cases such as SPS v PLS [2008] FamCAFC 16, apply to this case and as such the mother needs to show “a substantial change in circumstances” would, in the best interests of the children, warrant varying the parenting arrangements which have been in place since December 2006.

The evidence

1. The evidence of the mother was voluminous and contained details of numerous incidents where she claimed that the father’s behaviour was inappropriate or where he failed to co-operate in the children’s participation in extracurricular activities. Some of these incidents can only be described as petty while others were clearly more serious in their nature.

2. It is clear that the parents have a high level of conflict and difficulty in communicating. They are very different personalities. The mother is articulate, confident and convinced of her own views about what is best for the children. She is keen to meld together her children with those of Mr L into a new family. She appeared to be highly organised and supportive of routines. She was very critical of what she saw as the father’s shortcomings.

3. The father is, on his own admission, less literate than the mother. He was clearly less organised, even slightly shambolic, in his approach to things. He appeared to be easily frustrated by his inability to communicate effectively with the mother and quick to anger in response to what he perceives as her passive aggressive behaviour.

4. The parties also have different approaches to parenting and the children experience a very different lifestyle when in each of their care. The mother appeared to be rather cold and rational in her presentation, although Ms S, the Family Report writer, in her observations of her with the children described their interactions as positive. The father, in contrast, comes across as very emotional, sometimes inappropriately so. Both parents appeared to Ms S to be caring and devoted to their children. It is an assessment with which I concur.

5. There are clearly differences in the two households. The mother operates her two businesses from the family home. It was her evidence that she was available to supervise the children because of this and also to take them to various activities. It would appear that her study and the bedroom she shares with Mr L are in a different part of the house from where the children sleep and spend their time. It would seem unlikely that her business did not take up any of her time while the children are at home but I accept that generally she is available to them.

6. The father also operates his business from his family home, which was formerly the marital home. Due to the state of the business, he has been forced to undertake casual work as a [omitted] and this sometimes means that the children are babysat, normally by his father, when they are in his care. As he has not re-partnered, unless his father is available, he needs to take all three children with him when taking one of them to any extracurricular activities.

7. The mother complains of the father’s lack of cooperation in facilitating extracurricular activities for the children. Both parents, but more particularly the mother, seem to want to arrange such activities for the children during the other parent’s time. While the father’s lack of cooperation in this was an important issue for the mother, it did not seem to feature in the children’s concerns when they spoke to Ms S.

8. I do not consider it necessary to refer to all of the incidents raised by the mother in her evidence. There were some issues, however, which deserve comment, as detailed below.  

9. The question of the children’s attendance at [H] School has been an issue between the parties for some time. This is not because either party is opposed to their attendance but because the cost of the school is significant. The money set aside for this purpose has been exhausted and the father claims that he cannot afford to contribute to the cost. The mother either does not accept the father’s assessment of his capacity to pay or sees his unwillingness to do so as a lack of commitment on his part to the children.

10. The issue of the school fees is behind two incidents: firstly, the decision that the child [X] should sit for a scholarship and secondly, the father’s action in getting [X] to type a letter to the school saying that he could not afford to pay the fees.

11. In April 2009, the mother decided, apparently without consulting the father, that [X] should sit for a Grade 6 scholarship exam. The mother notified the father that the exam would take place on a Saturday when he was due to have the children. There were a series of exchanges about the issue which included allegations by the father about the mother’s behaviour. Finally, the mother arranged with the school for [X] to sit the exam at another time. [X] did not qualify for a scholarship.

12. In his affidavit evidence to the Court, the father suggested that he made the arrangements for [X] to sit the exam at another time. In his oral evidence, he was not able to substantiate this. It is of concern that the father wanted to appear to have been supporting [X] sitting for the exam although his email exchanges would not suggest that this was the case. It also concerns me that, in the dispute between the parents, it is not clear how [X] felt about either sitting for the exam or failing to get the scholarship.

13. The other issue concerns the father’s actions in getting [X] to type up a letter to the school stating that he could not afford to pay for the tuition fees and then asking her to deliver the letter. I agree with Ms S that those actions were not appropriate. While it is not unreasonable for [X] to be aware that her father cannot afford to pay her school fees, she should not have been involved in communicating this to the school.

14. The other issue of concern is the father’s failure to cooperate in making the children available to spend time with the mother on Mother’s Day because he thought it would be good for them to participate in the Mother’s Day Classic run. While the idea was not bad in itself, it should have been a joint decision by the parents and not a unilateral one.

Has there been a ‘substantial change in circumstances’?

1. Parenting orders were made by consent in this matter in September 2007 and the current parenting arrangements have been in place since at least December 2006. The mother relies on the following factors to establish that there has been a “substantial change in circumstances” warranting a change to the existing orders:

   ·The passage of time and the age of the children since the orders were made.

   ·The views expressed to the wife by the children and their desire to change the existing arrangements – in particular the views expressed by [X] in May 2010.

   ·The father’s behaviour in relation to the children’s attendance at various extracurricular activities and time spent with the mother on various occasions.

   ·The emotional pressure placed on [X] in May 2010 about her wish to change the parenting arrangements and over the issue of school fees.

   ·The emotional pressure placed on the children by the father about these proceedings.

   ·The attendance of all the children on the school counsellor.

   ·The father’s working commitments which require the children to be babysat at times when they are in his care and, on the mother’s contention, left unsupervised.

1. The father contends that the case quoted by the mother, Zabaneh, In the Marriage of (1986) 11 Fam LR 167l; FLC 91-766, does not stand for the proposition that the passage of time in itself is a reason for reconsidering parenting arrangements. The relevant passage from the judgment reads:

   The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.

2. It is the father’s contention that nothing has changed in the circumstances of the children or the father apart from the passage of time. The evidence of the children’s wishes as expressed to Ms S is not consistent with the mother’s evidence. It is the mother who has the strong wish to change the existing parenting arrangement.

3. The father accepts some criticism of his conduct regarding the children’s activities but does not accept that this criticism indicates that he does not have an appropriate commitment to the week about arrangement. He further submits that it is open to the Court to find that both parents have put emotional pressure on the children. The fact that the children are seeing a counsellor is not a sufficient reason to assume that it is the current parenting arrangements which are having an adverse impact on the children.

4. The mother contends that the attitude of the father and his parenting abilities supports a change of parenting arrangements.

5. I am not satisfied that the passage of time in this case provides a sound basis for reopening or reconsidering the parenting arrangements. To some degree, the passage of time works against such a reconsideration. A ‘shared care’ arrangement has been in place for these children since at least December 2006. There would, in my view, need to be some substantial change in circumstances to alter those arrangements.

6. The mother relies on the ‘views of the children’ as a reason to change the parenting arrangements to reduce the time they spend with the father.

7. The evidence from Ms S was that [Y] and [Z] did not want to change the current arrangements. While the mother attempted in her evidence to dispute this by reference to the short period of time Ms S had with the children and her own knowledge of them, I find her evidence in this regard to be self-serving. Ms S is a skilled professional, who felt that the children dealt with their parents’ conflict by telling each parent what they wanted to hear. She accepted that the children did not want to experience major change in the arrangements.

8. The situation with [X] is somewhat different. She is a young teenager and the eldest in a household of up to five children (when living with her mother). The father agrees that in May last year she did express a wish to live predominantly with her mother. After a long and it appears quite emotional discussion with her, according to the father, he changed her mind and their relationship since then has been “spot on”.[1] It was his evidence that she did not feel that way any longer.

   [1] Transcript of 17 February 2011 page 88 at line 23

9. [X]’s responses to Ms S showed less enthusiasm for the existing arrangements although she indicated that whatever was decided she would live with it. It is significant that she told Ms S that she did not want to let either parent down.

10. The mother’s next argument in favour of a reconsideration of the arrangements related to the father’s behaviour regarding the children’s attendances at various activities and to parenting in general. Some of the allegations, such as his failure to sign the school planners, were in my view petty and did not establish that he failed to supervise their homework. There was, for example, no evidence that they were late handing in work when living at their father’s place. Other matters, as previously discussed, were of greater significance.

11. In general, however, difficulty in reaching agreement on what extracurricular activities both the children and the parents can manage is not in my view a good enough reason to reopen parenting arrangements. Parents may differ on what activities are appropriate for children and how much time they should spend doing them. It may not be possible for a parent, given other commitments, to get a child to particular activities at particular times. This in itself does not make one parent less ‘worthy’ or less committed to their children than another.

12. The mother refers to the emotional pressure placed on the children by the father. On more than one occasion during his evidence he referred to himself crying or to the children crying with him. On the other hand, he gave evidence of [X] confiding in him about problems she was having with her step-father. He also gave evidence that the children had told him they wanted to spend more time with the mother and less with Mr L’s children. This suggests that the children may tell him things that they may be otherwise reluctant to tell the mother. There is also some evidence to suggest that the mother put pressure on the youngest child to express a wish about where the children should live.

13. The father needs to control his emotional behaviour with the children. His behaviour clearly impacts on the children and this is also reflected in their expressed desire not to upset either of their parents. However, does his behaviour place the children at risk? This was not the view of Ms S, although she did concede that aspects of the father’s behaviour were concerning.

14. There was evidence of the children attending a school counsellor and a counsellor arranged by the father whom they had apparently been seeing since the separation. Where the parents are as conflicted as these two, it is not unexpected that the children might require counselling. In the context where they may for financial reasons need to change schools, it is also not unusual that they might be referred to the school counsellor. There is nothing to suggest however that the need for counselling is a result of the shared care arrangements.

15. Since late 2009, the father has needed to supplement his income from his business by undertaking work as a [omitted]. It was his evidence that this sometimes meant that he worked on nights when the children were in his care. On those occasions, it was usual for the children’s paternal grandfather to look after them. His evidence was that he had a meal with them before going to work and was at home by 2.00am at the latest so that he was with them when they woke up in the morning. Despite a suggestion by the mother that the children were left in the care of [X], I do not accept that this was the case, unless it was for a short period while the father went to the shops.

16. The circumstance of the father working while the children are in his care is not new. He has previously worked on a Saturday from another location and taken the children with him. It would not be unusual on an ‘equal time’ arrangement for a parent to be working for some of the time the children are in their care. Indeed that may not be unusual in any family where the parents work.

17. Taking into account all of the matters raised by the mother, I accept that:

    i)the issue of [X]’s views and her father’s behaviour impacting on her; and

    ii)his change of circumstances, which requires him to work on a reasonably regular basis when the children are with him

    are changes in the circumstances which might warrant revisiting the orders made in December 2006.

18. Such a reconsideration is of course subject to the general provisions of the Family Law Act 1975 (Cth) (“the Act”) which require the best interests of the children to be the paramount consideration.

The applicable legal considerations

1. The starting point in considering any parenting application lies in the provisions of s.60CA of the Act that the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.

Parental Responsibility

1. Section 61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[2] In this case, neither parent suggests that that presumption should not apply.

   [2] Family Law Act 1975 s.61DA(4).

Equal time spent with each parent

1. Section 65DAA(1) of the Act requires that where a parenting order has been made for equal joint parental responsibility, the Court is to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.

2. In this case, the children have been spending equal time with the parents since at least December 2006. The Court would therefore need to be satisfied that those arrangements are either no longer reasonably practicable and/or that they are no longer in the best interests of the children.

3. The mother contends that equal time is not reasonably practicable because of the father’s very long work hours; his frequent unavailability to care for the children; the parties’ poor ability to effectively communicate; and the degree of hostility and conflict between them.

4. The evidence indicates that for financial reasons, the father has had to undertake casual work in the [omitted] industry. This involves him working on a reasonably regular basis on a Friday or Saturday night and occasionally during the day on a weekend. On two occasions during February 2010, the father requested that the mother have the children during times they would otherwise have been with him. Further, on a number of occasions, the children have been cared for by his father while he is working. Predominantly, if the children are with him, he works while they are asleep.

5. Parents who work frequently have to utilise forms of child care while they work. This does not make it impractical for the children to be in their care, particularly if the children are asleep for most of the relevant time.

6. The conflict between the parents is a more serious issue. They clearly have very different parenting styles and different attitudes toward the activities which the children and they engage in when in their care. I note that for the mother, most of the activities seemed to be things she took the children to, while with the father, the activities appeared to be more things he did with them.

7. The mother contends that limiting the time the children spend with the father could facilitate them regularly attending activities without the need for the parents to reach agreement or involve the debate and disagreement which currently accompanies such arrangements. However, the children could attend some activities during the time they are with their mother and other activities when they are with their father. Such a solution might be practicable, if not always suitable.

8. Ultimately, the issue is whether equal time is in the children’s best interests. To determine this, it is necessary to consider the provisions of s.60CC.

Primary considerations

Section 60CC factors

1. Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence. These are matters I shall address below.

Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The evidence in this case suggests that the children have a meaningful relationship with both parents. The description given by Ms S of her observations of the children with each of their parents was positive. The children were also positive in their discussions with her about both parents. Both parents were described by her as being very caring and devoted.

2. There appears to be no reason why a meaningful relationship with both parents is not positive or not in the children’s best interests. The father contends that equal time will assist in maintaining that relationship.

3. Ms S warns, however, that ongoing exposure of the children to the conflict between their parents may cause the children to align with one parent and reject the other. The mother contends that the children will be exposed to less conflict if they live primarily with her. This does not necessarily follow. Nor does it follow that the father’s occasional inappropriate emotional behaviour is less likely to occur if he sees less of the children.

Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The father contends that there are no issues of abuse, neglect or family violence. The mother points to aggressive emails sent by the father and to verbal abuse and threatening language used towards her husband

   
   

   Mr L. The incidents of verbal abuse and threatening language are denied by the father. Nonetheless, given the evidence of his frustration and emotional response to situations it is more likely than not that he was verbally aggressive with Mr L. There is however no evidence of physical violence. There is certainly no evidence of any violence or threatening behaviour towards the children.

2. The mother also claims that the children are neglected because the father leaves them with a baby sitter while he works.[3] She also claims that they are left entirely unsupervised at times. I do not consider that leaving a 13 year old in charge of younger children for a short period of time to be neglectful. The mother raised no issue that the children were being left with an inappropriate baby sitter.

   [3] See Affidavit of the Mother filed 15 July 2010 pages 11 – 12 at paragraphs 42 – 44; and Mother’s Summary of Argument Document filed 14 February 2011 pages 9 – 10 at paragraph 2.6.5.4

3. I am satisfied that both parents, to use Ms S’s terms, would be protective of the children and that, save for the psychological impact of the ongoing conflict between the parents, the children are not at risk.

Additional considerations

Section 60CC(3)

1. Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.

Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Both [Y] and [Z] expressed the view to Ms S that they wanted the current arrangements to continue. [X] expressed no definite preference and indicated that she would manage if the situation stayed the same or if it changed.

2. The mother challenged the views expressed by the children contending that they had previously expressed a view to her that they preferred to live primarily with her. She cites Ms S’s observation that the children may wish to tell each parent what they wish to hear in support of the contention that the children are only saying this so as not to upset the father. It could equally be contended that the children may tell the mother what she wants to hear in order not to upset her.

3. It is of greater concern that [X] seems to have shown no great enthusiasm for either option. She is a little older than the others and probably more acutely aware of the conflict between her parents. Her comments that she did not want to let either parent down indicate to me that she is torn in her loyalty to both of them. It is also likely that as a young teenager she will come into conflict with both of her parents from time to time and there is some comfort for her in knowing that she can confide in either of them as she appears to have done with her father in more recent times.

4. Both parents need to work more on their relationship with [X] and to give her more scope for independent decision making as she gets older.

5. To the extent that the wishes of the children are to be taken in account, I accept that they favour the continuation of an equal time arrangement.

Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. On the evidence, the children appear to have a good relationship with both parents. They also seem to have a good relationship with Mr L, although there did appear to be an issue about the way he dealt with such things as the children cleaning their rooms.

2. From Ms S’s observations, the children also had a good relationship with Mr L’s children although [Y] appeared to have some resentment about having to share his room with [A]. [X] also referred to “a bit of sibling rivalry”.[4]

   [4] Family Report of Ms S dated 14 January 2011, page 12 at paragraph 41.

3. The children also appeared to have a good relationship with their grandfather. [Z] referred to one of the good things about being with her father was getting to see her grandpa.

4. There appears to be some tension between [X] and [Z], although this may simply be the age difference of the girls. There was nothing to support the mother’s contention that it is related to [X] being required by the father to look after [Z] as this would equally apply to [Y] with whom she appeared to have a good relationship.

Section 60CC(3)(c): The willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. In her discussion with Ms S, the mother stated that she did not have to do anything to maintain the relationship between the children and the father. She did not appear to consider that significantly reducing the time they spent with him, including not having a full weekend with him, might impact on the closeness of their relationship.

2. The mother is also critical of the father’s actions in failing to cooperate with the children spending time with her on her birthday and Mother’s Day. This criticism is deserved.

3. The children can hardly fail to be aware of how the mother views the father, even though she says that she does not talk to them about him. She regards him as unsupportive of the things she considers to be best for them and they would clearly understand that she blames him for his failure to pay the children’s school fees.

4. As Ms S has noted, the conflict between the parents is likely to impact on the children if they feel that they need to take sides in this. On the positive side, both parents were agreeable to attending post-separation counselling and mediation. Unless they are both committed to this it will however not lead to any positive outcome.

Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other children, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The current arrangements have been in place for over four years. The mother’s proposal would result in a significant reduction in both the time and the regularity with which the children spend time with their father. This can hardly fail to have an impact on the children as they spend less time, particularly time which involves normal routines, with their father.

1. The mother suggests that the children spend considerable periods of time with their father not actually seeing him because of his work commitments. I do not accept that the evidence supports this. He does do some work from home on Saturdays but the children are with him during these times. His other work commitments seem primarily to be on a Friday or a Saturday night when the children are for some of the time at least in bed.

2. It should be noted that any proposal by the mother of reducing the children’s time with their father would also impact upon the time they spend with their grandfather, as the father sometimes calls on his father to baby sit the children while he is undertaking [omitted] work. As previously discussed, the children all appear to have a good relationship with their paternal grandfather and enjoy time spent with him.

3. The mother also contends that there would be less conflict between the parents if the children lived predominantly with her. This seems to assume that under those conditions she would make all the decisions about what the children did. That does not seem to me to be consistent with her agreement that there should be joint parental responsibility for the children, nor does it necessarily follow that less time with the father would lead to less conflict between the parents. Less conflict between the parents will only occur from both of them making a conscious effort to respect each other, acknowledge their different views and allow the children to enjoy the different lives they have with each parent.

Section 60CC(3)(e): The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This section is not relevant in these proceedings.

Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. It is contended by the mother that she has a greater capacity to provide for the children’s needs including their emotional and intellectual needs and that she is also better able to promote these needs than the father. She cites her strong commitment to the children’s ongoing education at their current school, her greater commitment to their extracurricular activities and social activities, the husband’s negativity towards her new husband and the children spending time with her on special occasions and the father’s lack of availability to the children.

2. The father has consistently argued that he wishes the children to remain at [H] School but that he cannot afford to pay the fees. In saying this, he may simply be being realistic. There is, in my view, nothing to indicate that he is not committed to the children’s education or anything to indicate that the children cannot obtain a good education in the area unless they attend [H] School.

3. Both parents are capable of meeting the children’s physical needs in terms of providing them with adequate accommodation, food and clothing. Their very different approaches to parenting do not suggest that they are not able to meet the children’s emotional needs.

Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. Neither party addressed this issue. It would appear from the evidence that the father may have had some difficulty initially in dealing with [X] entering puberty. This may also account for her preference expressed to both parents in mid-2010 to live primarily with her mother. It does seem however that the father and [X] are getting on better now. The father might benefit from some assistance in dealing with teenage girls.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

1. Section 60CC(3)(h) is not applicable in these proceedings.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother seeks to contrast her own responsible and committed attitude to parenthood with the attitude of the father particularly in relation to the children’s education and extracurricular activities. She also considers him to be financially irresponsible.

2. The mother has clear views about what the children need. The father has different views. He is clearly less organised than she is but also does not have the advantage of a partner with whom to share parental responsibilities.

3. I have no doubt that, in his own way, he is committed to the children, to providing for them and to giving them support and varied experiences from those they may enjoy the benefit of when with the mother.

Section 60CC3(j): Any family violence involving the child or a member of the child’s family

Section 60CC3(k): Any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order; or (ii) the making of the order was contested by a person

1. Sections 60CC(3)(j) and (k) deal with the issue of family violence. They are not relevant to these proceedings or have otherwise been addressed in considering s.60CC(3)(b).

Section 60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The mother contends that if the children are primarily in her care, the need for the parties to engage in highly conflicted communication about day to day matters would be reduced and the children would be less exposed to inappropriate behaviour by the father.

2. It does not necessarily follow that less time with the father will lead to less conflict, nor is it necessarily an outcome where the father would be less emotional or less likely to act without thinking things through. As the father said in his evidence to the Court – he learns every day and perhaps may have learnt some things about appropriate behaviour with the children from these proceedings.

3. Both parents have a tendency to think that the things that they want the children to do are of a level of importance that the other parent does not support. These children are not isolated or unsocialised. They do not appear to be deprived of useful or stimulating activities. Having them spend the majority of their time with the mother may facilitate them in regularly attending activities which she considers to be good for them. It may also deprive them of the ability to do things with the father from which they might also benefit.

Section 60CC(4):  Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. The mother contends that she has taken every opportunity to participate in making decisions about long term issues in relation to the children and to spend time and communicate with them. She submits that the father’s work commitments preclude him from doing the same. I am not satisfied that the father spends an excessive amount of time away from the children while they are in his care. He is able to be with them after school and, for the most part, his time away from them on weekends is at night. It is not unusual in every day life for parents to have work commitments which mean that they are unable to spend every available minute with their children.

2. The mother further contends that she has attempted to involve the father in making decisions about the children’s welfare, including decisions about their education and other activities. The communication between the parties in this regard leaves a lot to be desired on both sides. There is precious little evidence of any joint decision making. I do not accept that the blame for this is entirely with the father.

3. The mother claims that the father has failed in his obligation to maintain the children because of his unwillingness to pay the school fees. The father says he is attempting to support both himself and the children through trying to maintain the business and his casual work.

Conclusions on parenting matters

1. The children currently spend equal time with each of their parents. Under the mother’s proposal, the children would essentially spend Saturday night, Sunday, Sunday night and before and after school on Monday until Tuesday morning every fortnight with the father; a change from 7/7 to 11/3 in terms of the time spent. The children would only have a full weekend with their father during the school holidays. Is such a drastic reduction in time with the father justified in the best interests of the children? I do not believe so.

2. The mother, particularly in her trial affidavit, has placed emphasis on the blending of her family with that of her new husband. She even seeks that the children’s time with the father be suspended for the new husband’s birthday and those of his children. Under her proposal, it is likely that the father would become increasingly marginalised in the children’s lives.

3. The father has his faults. In the mother’s view, he is not as ‘good’ a parent as she is. He clearly loves his children and cares about them. He is doing his best as a father and I am not satisfied that the children are suffering because of any short comings he may have.

4. The main problem for these children is the conflict between their parents. The parties need to be more respectful of each other and learn to communicate more productively. If the father cannot take the children to an important event and the mother can then they should be able to agree to this. On the other hand, what the father does with the children when they are with him cannot be dictated by the mother.

5. The father has indicated agreement with most of the orders proposed by the mother in her Summary of Argument document filed 14 February 2011 with the exception of those parts of the orders which deal with time spent. He also has withdrawn his own proposal to change the changeover time from Monday to Sunday – a recognition of the mother’s agreement that this would ‘eat into’ the weekend time the children have with either parent. I am satisfied that the ‘time spent’ should not be changed. I will also make orders in relation to special occasions with the intention of avoiding any further issues such as the Mother’s Day Classic run, as outlined earlier.

Child Support

1. In September 2007, the parties entered into a Child Support Agreement (“the Agreement”). On the same day, the parties also signed Minutes of Consent Orders, which were made by the Court on 12 September 2007. The Agreement states the intention of the parties to have the Agreement registered with the Court pursuant to s.95 of the Child Support (Assessment) Act1989. The Agreement has a conclusion date of 31 December 2020.

2. The Agreement provides for periodic child support to be paid as assessed by the Child Support Agency. It further provides that:

   the parties otherwise agree to utilise the funds currently held by them jointly as trustees for the children with the Colonial First State MIF-Geared Shared Fund (approximately $150,000 as at the date of this Agreement) for the children’s education, maintenance and benefit.[5]

   [5] Child Support Agreement, page 5 at paragraph (5).

3. Order 18 of the Minutes of Consent Orders also deals with the money held in the Colonial First State MIF-Geared Share Fund ("the Fund”). It states that:

   The Husband the Wife shall continue to invest in their joint names the managed funds held by them with the Colonial First State MIF-Geared Share Fund, and held by the Husband the Wife upon trust for [X], [Y] and [Z] (hereinafter referred to as “the Children’s Funds”), SAVE THAT the Husband and the Wife shall ensure that the proceeds of the Children’s Funds, as invested by them with Colonial, shall be applied and paid by them from time to time to meet the school fees, books, uniforms and like essential expenses required for [X], [Y] and [Z] to continue to attend at the [H] School in [M] for the purposes of the children.

4. The mother seeks that the Court make orders setting aside the Agreement and also seeks orders that depart from the assessment made by the Child Support Agency and require the father to pay periodic maintenance in the sum of $150.00 per week for each child or 75% of the children’s school fees and school related expenses.  

5. Section 136(2) of the Child Support (Assessment) Act 1989 provides that the Court may set aside a binding child support agreement on certain grounds. The mother relies on s.136(2)(d) which provides:

   (d)  in the case of a binding child support agreement--that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.

6. The parties both refer to a number of relevant authorities on the application of s.136(2)(d) in particular to Daley & Daley [2009] FMCAfam 398; Venson & Venson (No.2) [2010] FamCA 963; In the Marriage of Sandrk (1991) 15 FamLR 197; and Gallup & Gallup [2009] FMCAfam 839.

7. These cases suggest that ‘exceptional circumstances’ are circumstances which are extraordinary, occurring unexpectedly, could not be reasonable foreseen or contemplated and are marked by some characteristic which render them to be unusual or other than commonplace. They do not include the ‘normal vicissitudes of life’. Whether circumstances can be considered exceptional involves consideration of both objective and subjective elements. What constitutes ‘exceptional circumstances’ can be made out through a cumulative series of different circumstances which taken individually would not amount to an exceptional circumstance.

Are there exceptional circumstances which have arisen since the Agreement was made?

1. The mother relies on the following to submit that exceptional circumstances exist. Firstly, she relies on the global financial crisis which had the effect of radically devastating the Children’s Fund (“the fund”). She submits that in 2007, the parties reasonably expected that the fund could be used to pay the school fees for many years. Secondly, the mother refers to the financial cost of supporting her husband’s parenting proceedings which have depleted her own financial resources. She also relies on the fact that at the time of entering the Agreement, the future of the business [N] Pty Ltd was at risk. Lastly, she relies on the fact that the Agreement was entered into prior to the changes in the legislation, at a time when the grounds for discharging child support agreements were arguably less onerous to satisfy.[6] The mother also refers to her application in this matter to reduce the time spent by the children with the father.

   [6] Neville & Neville (2010) FLC 98-055; [2010] FMCAfam 1162.

2. The father contends that the depletion of the fund was not an exceptional circumstance. Both parties foresaw that the fund would be depleted at some stage. Although the capital in the fund dropped due to the global financial crisis, the exhaustion of the fund did not occur suddenly but extended over some years as the mother drew the capital down. The father further contends that the orders limited the mother to use of the proceeds of the fund and that she should not have been using the capital of the fund at all.

3. The father further submits that the use of her financial resources to support her current husband’s legal costs in his proceedings was not an exceptional circumstance as this was a voluntary expenditure.

4. The father sought to distinguish the decisions in Gallup & Gallup [2009] FMCAfam 839 and Neville & Neville (2010) FLC 98-055; [2010] FMCAfam 1162 on the basis that, in those cases, the capital that was dissipated was the only or main financial resource of the parties. Further, in Gallup, both parties were in serious financial difficulty. Neither is the case in these proceedings. Private school fees are a discretionary expenditure.

5. The parties in this matter entered into the Agreement at the same time as agreeing to Minutes of Consent Orders. Prior to entering into those Orders, the parties had both been directors, secretaries and equal shareholders in the business [N] Pty Ltd and the majority of the matrimonial assets of the parties were registered in the company’s name. They also held in their joint names, managed funds with the Colonial First State MIF-Geared Share Fund which is the subject of Order 18. A notation to the Orders (Note B) also states that “The parties have this day also entered into a Child Support Agreement designed to give effect to the intentions as referred to in paragraph 18 hereof”.

6. The Agreement itself is notable as much for what was deleted before it was signed as for what it contains. For example, I note in relation to paragraph Q of the preamble that the words:

   including the expectation and agreement by the parties that the children will continue to attend the [H] School in [M] for the sake of completing both their primary school education and secondary school education

   have been deleted after:

   the joint intention of the parties that [X], [Y] and [Z] be educated in the manner appropriate to their needs.

7. Further, I note that the following original clauses have all been deleted from the final terms of the Agreement:

   ·Clause 3 stating an express intention that the children continue to attend the [H] School;

   ·Clause 4 dealing with what should occur if the school ceased to exist;

   ·Clauses 5(b) and 6(b) dealing with an obligation on each parent to pay 50% of the school fees, books, uniforms and other essential education expenses for the children; and

   ·Clause 8 requiring the parents to utilise their own funds should the proceeds of the Colonial First State MIF-Geared Share Fund be inadequate.

8. After such deletions, the substance of the Agreement is that both parties agree to pay any periodic child support they are assessed to pay by the Child Support Agency and otherwise agree to utilise the funds held in the Colonial First State MIF-Feared Share Fund “for the children’s education, maintenance and benefit”. [7] Payments made from the fund were not to be credited against any administrative assessment of child support requiring either of them to make periodic child support payments.

   [7] Child Support Agreement, page 5 at paragraph (5).

9. The parties have had an ongoing dispute about the way the fund has been used. The father says that the capital in the fund should not have been depleted to pay for the school fees. Order 18 of the Orders refers to the proceeds of the fund, as invested, being applied for such purposes. The mother disagrees and points to the wording of paragraph 5 (as amended) of the Agreement which states that the parties agree to “utilise the funds”.

10. One would usually assume that a reference to the proceeds of the fund as invested excluded the capital sum. While the Orders note that the Agreement was intended to give effect to Order 18 of the Orders, it appears to go beyond the terms of that order. It is not clear however what the parties intended if the return on investment was insufficient to cover “the school fees, books, uniforms and like essential expenses required for [X], [Y] and [Z] to continue to attend at the [H] School in [M]”. Not only did this eventuate but, because as a result of that the mother used the capital in the fund to meet the expenses, the fund was depleted.

11. In the absence of any money in the fund, the Agreement now only provides in any practical sense for each parent to pay what ever periodic child support the Child Support Agency assesses them as liable to pay.

1. Both parties accepted that it was likely that the money may run out before the youngest child finished school. While the Agreement has a concluding date of 2020, the mother’s evidence was that she expected it to last until 2015 and the father gave a somewhat shorter life to the fund. The Agreement makes no provision as to what should occur should the fund run out. Unless we assume that it was the intention that the capital would be preserved, it does not appear that the parties had any agreement as to what should occur in such an event.

2. The mother submits that given the earnings of the fund in September 2007 of 10%, it was reasonable to assume that the fund would continue to provide for the children’s school fees until 2014 or 2015. Even at that assessment it would not have lasted for the life of the Agreement being 2020.

3. The mother submits that if the fund was inadequate to meet the needs of the children’s education then it must be assumed on the basis of Order 18 that the parties intended to meet the needs of the children’s education, in attending [H] School, from their own resources. I note however in this regard that the words “completing both their primary school education and their secondary school education” were deleted from Order 18.

4. This seems to suggest that both the Order and the Agreement contemplated that the children’s educational expenses would be paid from the fund so long as the money lasted. Both are however silent on what should occur if or when the money ran out.

5. In these circumstances, is the fact that the money ran out sooner than both parties expected in part because of the global financial crisis an exceptional circumstance? In and of itself, I would have thought not.

6. The mother does not rely solely on the impact of the global financial crisis on the educational fund.

7. In both Gallup and Neville, the Court considered that a number of circumstances that were not exceptional in themselves could cumulatively constitute exceptional circumstances. In Gallup, the Child Support Agreement was entered into at the same time as a property settlement. Both parties received shares valued in the order of $200,000.00 to $220,000.00. These were their only truly substantial assets at the time. In seeking to have their Child Support Agreement set aside, the father relied upon the following factors:

   (a)His pre-existing mental health which was worsened by the breakdown of the matrimonial relationship and the loss of time with the children and the subsequent impact upon his capacity to find employment bearing in mind his history of self-employment;

   (b)Due to the longer than expected period of unemployment, his need to use his capital to support himself;

   (c)His new relationship with his now wife having to be facilitated between Australia and Thailand;

   (d)That his new wife’s visa restrictions mean that she will remain a financial burden to the father for at least the first two years of her time in Australia;

   (e)That the father and his new wife have a child together, for whom, only the father can receive government benefits and his wife cannot contribute at all financially;

   (f)That the father’s new child is a legitimate cause for expenditure by the father and should be taken into account;

   (g)That the main capital base of the father’s was a share portfolio, and that is now worthless following the downturn in the share market due to the present global financial crisis.[8]

   [8] Gallup & Gallup [2009] FMCAfam 839 at paragraph 76.

8. It was his Honour’s view that “none of the factors, of themselves, put forward by the father, were exceptional but that cumulatively they take on a different character”.[9]

   [9] Ibid at paragraph 90.

9. In Neville, the father stated that when he entered into the Child Support Agreement he was unable to pay for the children’s school fees, uniforms and books. His mother was however prepared to pay the fees and a notation was entered into her will reducing his inheritance by the amount equal to the payment made.

10. Due to his mother’s deteriorating health, she required a paid carer which impacted on her ability to advance money to the father. He argued that the circumstances were exceptional in his case because:

    (a)His Mother can no longer gift him approximately $10,000 a year;

    (b)His payment will exceed the assessed amount by $57,727 by the time the children are 18 (excluding school fees which he is to pay);

    (c)The legislation was amended subsequent to this agreement being signed that made it more difficult to set aside the agreement;

    (d)The Father signed the agreement without the endorsement of a solicitor which the amended legislation requires.

    (e)The Father is paying $206 per week more than the amount he would now be assessed to pay.[10]

    [10] Neville & Neville [2010] FMCAfam 1162 at paragraph 26.

11. Federal Magistrate Cassidy considered that none of the factors put forward by the father were exceptional but cumulatively they took on a different character. Her Honour was also satisfied that the father was unable to pay his current child support debts without accruing debts on his credit card.

12. I have addressed the issue of the depletion of the fund. While the global financial crisis may have been unexpected, there were no guaranteed returns on the investments in the fund and the parties were aware that it might not see the distance. It is also not exceptional that a party may re-partner after divorce and that they may encounter additional expenditure associated with that change in circumstances. While the circumstances of [N] Pty Ltd may have changed since September 2007, the evidence before me does not suggest that it is thriving.

13. In this case, both parents were legally represented and while the relevant legislative provisions did not take effect until 1 July 2008, the Child Support Legislation Amendment (Reforms of the Child Support Scheme – New Formula and Other Measures) Act 2006 was introduced into Parliament in July of 2006 and was passed by Parliament before the end of that year.

14. The Agreement was entered into before 1 July 2008. It was reviewed by the Child Support Agency and accepted as a binding child support agreement. In Daley, Federal Magistrate Brown accepted that the change in legislative provisions was an event which the parties could not have foreseen when they entered into the Agreement, nor had they had the benefit of any legal advice at the time. This is not true of this case.

15. Lastly, the mother refers to the changes in parenting arrangements proposed in her orders. Again, it seems to me that such a change would be catered for by those parts of the Agreement dealing with the assessment by the Child Support Agency of the periodic payments each of the parties might be required to pay.

16. Do the factors referred to by the mother cumulatively amount to exceptional circumstances? I am not satisfied that collectively they do amount to extraordinary or unusual circumstances which have been so totally unexpected as to render the Agreement one which should be set aside. While such a decision leaves that part of the Agreement which deals with educational expenses with no work to do, I am satisfied that this was contemplated by both the parties as likely to occur before the Agreement expired in 2020. The Agreement continues to make proviso for periodic child support payments based on the assessment of the Child Support Agency.

Capacity to make a Departure Order

1. As the Agreement now essentially only deals with the liability of the parties to pay periodic child support pursuant to the terms of any administrative assessment made by the Child Support Agency, it must be assumed that it includes the capacity for that assessment to be reviewed including by the making of a departure order by the Court.

2. Section 117(1) of the Child Support (Assessment) Act 1989 states:

   Court may make departure order

   (1)  Where:

   (a)  application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and

   (b)  the court is satisfied:

   (i)  that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and

   (ii)  that it would be:

   (A)  just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (B)  otherwise proper;

   to make a particular order under this Division;

   the court may make the order.

3. The grounds for the departure relied upon by the mother are:

   ·s.117(2)(b)(ii) of the Child Support (Assessment) Act 1989 that, in the special circumstances of the case, the costs of maintaining the child(ren) are significantly effected because the child(ren) is(are) being cared for, educated or trained in the manner that was expected by his or her parents; and

   ·s.117(2)(c)(ia) of the Child Support (Assessment) Act 1989 that, in the special circumstances of the case, application in relation to the child(ren) of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child(ren) because of the income, property and financial resources of either parent;

4. The evidence, both in affidavit and oral form, shows that the parents wish for the children to continue to be educated at the [H] School. However, the deletions from the Agreement indicated that they did not agree as to how this might be done once the money from the fund ran out. Order 18 of the Orders made by consent is also limited by the provision that the source of such funding is agreed to be the fund and it is implicit in the deletions from that Order that the parties did not assume that this would cover the completion of both the primary and secondary education of all of the children.

5. Indeed the father’s evidence suggests that his wish that the children continue to be educated at [H] was contingent on the capacity of the parents to pay the fees.

6. Essentially, the issue is one of capacity to pay. The father says his commitment to the children attending [H] is limited by his ability to afford the fees. The mother contends that he has the capacity to pay 75% of the children’s school expenses.

7. The mother declares an income of $1,196.00 per week, $62,192.00 per annum, consisting of a total salary of $30,000.00 per annum from her two businesses, family benefit and child support payments and the benefit she derives from the mortgage and rates paid by her company [T] Group P/L, which is the owner of the home in which she lives. She declares Mr L’s income to be $628.00 per week ($32,656.00 per annum) and his contribution to household expenses at $200.00 per week.

8. The mother declares expenditure of $1,212.00 including $170.00 per week in rent paid to [T] Group P/L and $861.00 in living expenses for herself and the children. These expenses appear to be rather frugal, for example, food for herself is estimated to cost $25.00 per week. The property has a mortgage of $597,470.00 and the two businesses are said to be operating at a loss. The [T] Group pays the mortgage of $500.00 per week and rates of $19.00 per week. She estimates the educational costs for the children to be $600.00 per week.

9. It was not easy to ascertain the father’s income in cash and kind. His financial statement declared a weekly income of $107.00 or $5,564.00 per annum. He explained that this was the income from his part-time job as a [omitted]. This does seem rather low given his evidence about the extent to which he undertook this work. At the rate of $27.50 per hour (his evidence) this is only about 6 hours per week. The husband also declared income from family benefits. He also benefits from the fact that he lives rent-free in premises, which while in part are used to run his business, also provide his home.

10. The father declares personal expenditure of $457.00 per week. I am satisfied, however, that some of the expenses paid for by the company [N] Pty Ltd through the father’s use of the company credit card are personal in their nature. He therefore derives some benefit from both the payment of those expenses and access for his personal use to a motor vehicle owned and maintained by the company. The evidence also suggests that an amount of $8,000.00 has been paid as ‘director’s fees’ from the company although this would appear to be an amount allocated as the benefit to the father from the payment of the mortgage on the family home by the company.

11. The father’s evidence was that the company was making a loss. He was on a payment plan to pay off utility bills and a parking infringement and was having difficulty in making ends meet. I accept his evidence with respect to the fund held for the benefit of his adult daughter from a previous relationship [name omitted].

12. The father submits that his income, including the benefits he receives from [N] Pty Ltd, could not exceed $50,000.00 per annum. While the mother disputes this, she submits that even if the father’s income was $50,000.00 he would be able to contribute to half of the school fees, for the father has resources in the form of investment property with substantial equity and a modest mortgage.

13. Assuming that the amount earned by the father from his [omitted] work is closer to $10,000.00 per annum (based on the evidence of payments to him) and he receives benefits of $6,084.00 from family benefits and $8,000.00 from the company in terms of use of the matrimonial home (which would appear to be about 50% of the mortgage payments) this would amount to about $24,084.00, a sum which slightly exceeds his declared expenses. This amount does not include any benefits derived from the company credit card or the personal use of a company provided and maintained vehicle. I do not accept that the rental on the [V] property can be counted as the father’s income as it is clearly accounted for in the company’s accounts which are currently showing a small loss.

14. I accept that the father’s income, including benefits derived from the payment of the mortgage, rates and insurance on the house, the provision of a motor vehicle and the use of the company credit card for personal expenditure would make his income closer to $50,000.00 per annum, although, a significant part of this is ‘in kind’ rather than in cash.

15. On the material before me, I have difficulty in seeing how either parent, given their financial situations could sustain payments of at least $300.00 per week ($15,000.00 per year) for the children’s educational expenses.

16. The mother refers to the father’s ownership through [N] Pty Ltd of the investment property at [V] as a financial resource which the father could utilise to pay for the school fees. The evidence suggests that without the rental income from [V], the company, which is not trading profitably, would not survive. As Property V is an asset of the company, it cannot be assumed what benefits derived from its sale would flow to the father. After discharging the mortgage, payment of capital gains tax and other expenses, any liabilities of the company would first need to be discharged, if the company was wound up. The father would then be solely reliant on his income from casual [omitted] work.

17. While the parents may have wished, and continue to wish, to have the children educated at [H] School, as early as September 2007 the evidence suggests that those wishes were tempered by their capacity to pay the required fees.

Conclusions in relation to the departure order

1. I am not satisfied that because of the income, property and financial resources of the father that the grounds for a departure order exist.

2. It is true that the children are currently being educated in a manner that the parents aspired to. Would it be just and equitable to make a departure order to require the father to pay 75% or even 50% of the children’s educational expenses?

3. The father has a duty to maintain the children. That duty takes priority over all other commitments other than the necessity to maintain himself. The children need to be educated. It is questionable that they ‘need’ to be educated at [H] School or that there are not suitable alternatives which would be less expensive. The children have no independent income, property or financial resources. The earning capacity of each of the parents is not clear. Both of them are currently self-employed and appear to have been so for some time. The father is also working casually as a [omitted]. He may have some capacity to increase his earnings from that type of work.

4. The commitments of each of the parents necessary to support themselves and the costs incurred by the mother ($600.00 per week) to provide for the children’s education are matters already discussed.

5. Would it cause ‘hardship’ to the children or the mother if the Court refuses to make the departure order? The mother submits that it would be an obvious hardship to the children to be forced to leave the school they have attended since commencing their education. I accept that where the children have had to contend with their parents’ separation, the mother’s remarriage and acquisition of step-children and the litigation between their parents, that the school represents a constant in their lives. In my view, however, ‘hardship’ implies something more than disappointment or dislocation. There is nothing to suggest that they would not adapt to new schools or that an adequate education was not obtainable at other schools in the area.

6. I cannot see how on her declared income the mother could pay $600.00 per week for the children’s education without compromising on other basic expenses or incurring debt. She could however avoid that outcome by moving the children to a less expensive school.

7. As I consider it unlikely that the father could sustain such payments, I do not consider it would be just and equitable to make the orders sought or to make any order requiring the father to contribute to the children’s educational expenses, other than those agreed by the parents.

The father’s application with respect to past child support

1. The father seeks an order of the Court with respect to his obligations to pay child support for the financial year 2006–2007. He does so on the basis that he incorrectly stated his taxable income for the year at $69,923.00 when it has now been re-assessed at $37,780.00. The original assessment came about because an amount of $22,500.00, which was part of the property settlement, was included by the husband as part of his taxable income for that year. The mother also received the same amount which she did not include in her assessable income.

2. The father now submits that, because of the error in the original tax return submitted, his liability to pay child support was incorrectly calculated. As the child support period in question is in excess of

   
   

   18 months before the making of the application to vary the assessment, leave of the Court is required under s.111 of the Child Support (Assessment) Act 1989.

3. The mother initially did not oppose leave being granted, however in final submissions, it was put by the mother that the evidence before the Court was not consistent with the reasons given by the father for the variation to his assessable income for the year 2006–2007 and should not be accepted. In the alternative, the husband’s child support arrears of $8,382.38 (which arose from the 2006–2007 assessment) should be counted as a contribution towards the children’s school fees, the total cost of which has been met by the wife since the fund was exhausted.

4. I accept that the amendment to the 2006–2007 taxable income of the husband should be reflected in his liability to pay child support. Leave is therefore granted under s.111 of the Child Support (Assessment) Act 1989 to seek a variation under s.118 of his child support obligations for that year.

1. I am therefore prepared to grant the order that his taxable income for the financial year 2006–2007 should be $37,780.00.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  18 August 2011