LISTER & SEWELL
[2016] FCCA 2215
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LISTER & SEWELL | [2016] FCCA 2215 |
| Catchwords: CHILD SUPPORT – Set aside binding child support agreement – duress – exceptional circumstances – application dismissed. |
| Legislation: Family Law Act 1975 ss.4AB, 61DA, 65DAA(1) Child Support (Assessment) Act 1989 ss.80C, 136(2) |
| Cases cited: Rice & Asplund [1979] FLC 90-725 Goode & Goode [2006] FamCa 1346 In the Marriage of Kohl (1981) 7 Fam LR 591 at 598 In the Marriage of S (1980) 5 Fam LR 831 at 839 In the Marriage of Pelerman (2000) FLC 93-037 at 87,589 Keane & Keane & Ors [2013] FamCA 332 Crescendo Management v Westpac Banking Corp (1998) 19 NSWLR 40 |
| Applicant: | MS LISTER |
| Respondent: | MR SEWELL |
| File Number: | SYC 292 of 2013 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 19 and 20 May 2016 |
| Date of Last Submission: | 20 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Suzanne Wyman & Associates | |
| Counsel for the Independent Children’s Lawyer: | Mr Fermanis | |
| Solicitors for the Independent Children’s Lawyer: | Claremont Legal |
ORDERS
All previous parenting orders be discharged.
The parents shall have equal shared parental responsibility for the children, X (born on (omitted) 2007), Y (born (omitted) 2009) and Z (born (omitted) 2009) (“the Children”).
The Children shall live with the Mother.
The Children shall spend time with the Father as follows:
(a)During school terms:
(i)Commencing the first week of each school term, each alternate weekend from the conclusion of school on Friday, or 3pm if it is not a school day, until the commencement of school on Monday, or 3pm if it is not a school day.
(ii)Commencing the second week of each school term and each alternate week thereafter, from the conclusion of school on Wednesday, or 3pm if it is not a school day, until the commencement of school on Friday, or 3pm if it is not a school day.
(b)During school holidays for one half of all school holiday periods as agreed in writing, and failing agreement as follows:
(i)In even numbered years, from the conclusion of school on the last day of the school term until 9am on the Sunday at the midpoint of that school holiday period; and
(ii)In odd numbered years, from 9am on the Sunday at the midpoint of the school holiday until the day before school term resumes.
(c)During the weekend on which Father’s Day falls, if the Children are not otherwise spending time with the Father, from 6pm on the Saturday preceding Father’s Day until the commencement of school the Monday following Father’s Day.
(d)From 3pm on 24 December 2016 until 3pm on 25 December 2016 and each alternate year thereafter.
(e)From 3pm on 25 December 2017 until 3pm on 26 December 2017 and each alternate year thereafter.
That if the children are not otherwise with the mother during the weekend on which Mother’s Day falls, the children shall live with the mother from 6pm on the Saturday preceding Mother’s Day until the commencement of school the Monday following Mother’s Day.
That if the children are not otherwise with the mother they shall live with her from 3pm 24 December 2017 until 3pm 25 December 2017 and each alternate year thereafter.
That if the children are not otherwise with the mother they shall live with her from 3pm on 25 December 2016 until 3pm on 26 December 2016 and each alternate year thereafter
For the purposes of facilitating orders 3 to 7 above, when changeovers do not occur by way of collection or delivery to or from school, the parent with whom the children are to spend time or live with be responsible for collecting the children from the other party’s residence at the commencement of their time and the other party will collect the children at the conclusion thereof.
That the parents shall each facilitate the children communicating with the other parent by telephone, face time or skype at a time agreed during all school holiday periods, and failing agreement on Tuesdays and Fridays at 7pm.
Each parent shall provide to the other parent, in a timely manner, copies of all notices received from school and details of all functions, parent teacher nights, sporting events and other activities to which parents are invited.
Each parent shall keep the other parent informed about matters concerning the welfare and education of the children.
Each parent keep the other parent informed about:
(a)Any medical problems or illness suffered by the Children whilst in their care;
(b)If any mediation has been prescribed for the Children;
(c)Any specialist medical appointments for the Children;
(d)Any social, school or religious functions which the Children are to attend;
(e)Their residential address;
(f)Their telephone number.
Each of the parents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in these proceedings,
With or in the presence or hearing of any of the children and from permitting any other person to do so.
The father’s application to set aside the Binding Child Support Agreement entered into by the parties is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lister & Sewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 292 of 2013
| MS LISTER |
Applicant
And
| MR SEWELL |
Respondent
REASONS FOR JUDGMENT
The matter comes before the Court on the father’s application to vary final orders made by this Court on 6 June 2013 with respect to parenting matters. The father also seeks to set aside a Binding Child Support Agreement (“BCSA”) entered on 20 May 2013.
The precise parenting orders sought by the father varied during the course of the hearing. The father’s initiating application filed on 26 March 2015 seeks that he spends time with the children X born (omitted) 2007, now aged nine and twins, Y and Z, born (omitted) 2009, now aged six, in an equal time arrangement as follows:
a)Week 1 – Wednesday from after school until Saturday 1pm and the mother to collect the children from the father’s residence at the conclusion of time.
b)Week 2 – Wednesday from after school until Sunday 1pm with the father to collect the children from school and the mother to collect the children from the father’s residence at the conclusion of time.
c)During school holidays for the same periods, save that the father collect the children from the mother’s residence at 9am on Wednesdays.
d)Either party may elect on one month’s notice, to take the children on a holiday outside of Sydney during the school holidays for a maximum period of seven days in one block and the other parent spend the same amount of block time with the children during that school holiday period, failing any agreement, the father will spend the first week with the children and the mother will spend the second week.
e)That the children attend at (omitted) College at (omitted).
f)That the Binding Child Support agreement be set aside.
In his affidavit filed on 17 May 2016 the father sought a different series of orders with respect to the children:
a)Week 1 – from after school Wednesday afternoon to before school Thursday morning and from after school Friday afternoon to 1pm Saturday.
b)Week 2 – from after school Monday to 7:30pm, from after school Wednesday to before school Thursday, and from after school Friday to 1pm on Sunday.
c)During school holidays, that the same arrangements continue, save that the children be collected at 7am on Mondays and returned to the mother at 3:30pm, 7am Wednesdays and the mother collect them at 12pm Thursdays, 7am Fridays and the mother collect them on Saturday at 1pm. And in week 2, 7am Monday to 3:30pm, 7am Wednesday to 12pm, 7am Friday to Sunday, 1pm, that either parent can take the boys away for a week with sufficient notice given to the other parent.[1]
[1] Father’s affidavit filed 17 May 2016 . The father corrected 7pm to 7am in oral evidence.
The father then indicated on the last day of the hearing that he wished to revert to seeking orders for equal time in accordance with his application on 26 March 2015, rather than the proposal that was set out in his affidavit.
The mother sought in her response filed 9 July 2015 that the father’s application be dismissed. In an amended response filed 16 May 2016, the mother sought that orders be varied, so that time occur with the father each alternate Wednesday from after school until the beginning of school Thursday, each alternate weekend from after school Friday until the beginning of school Monday, and one half of each school holiday period. There were various ancillary orders sought, but the primary controversy relates to the time arrangements. The mother sought that the BCSA remain on foot.
A further amended response was filed on 16 May 2016,[2] which sought that time on the Wednesday be each week rather than alternate week. This was not the response relied on in the mother’s case outline. When in the witness box, the mother said that it was her understanding she was seeking time with the father to occur each Wednesday, not each alternate Wednesday. Given the father had been cross-examined at some length on the mother’s proposal as it was written, this came as something of a surprise.
[2] Exhibit M1
The Independent Children’s Lawyer (“ICL”) sought orders at the conclusion of the hearing which provided for time to occur each alternate Friday from after school to Monday before school and each alternate Wednesday after school until Friday before school. The mother joined with the ICL in seeking those orders prior to final submissions.
Documents relied on
For the mother:
a)A case outline document prepared by her counsel.
b)Amended response filed 16 May 2016.
c)Affidavit filed 16 May 2016.
For the father:
a)Initiating application filed 26 March 2015.
b)Financial statement sworn 24 April 2016.
c)Affidavit sworn 17 May 2016.
d)Affidavit sworn 26 April 2016.
e)Affidavit sworn 10 March 2015.
The following documents were tendered as exhibits.
a)ICL1, Child Dispute Conference memorandum dated 19 August 2015 by Ms A.
b)ICL2, The ICL’s costs memorandum.
c)M1, The mother’s further amended response filed 20 May 2016.
d)F1, Printout of email exchange between the father and his former solicitor dated 2 May 2016.
e)F2, Printout of SMS exchanges between the parties.
f)F3, Father’s payslip dated 15 January 2016.
The ICL provided a case outline document prior to the hearing.
Background
The father is 40 years of age, the mother is 38 years of age. The father works as a (occupation omitted). The mother works as a (occupation omitted) in her own business.
The parties married on (omitted) 2006. They have 3 children: X born (omitted) 2007, now aged 9 years, and twins Y and Z born (omitted) 2009.
The parties separated on 4 September 2012. Final orders were made by consent on 6 June 2013 with respect to parenting and property. The parties entered into a BCSA on 27 May 2013, which was subsequently registered with the Child Support Agency (“CSA”).
The parenting orders of 6 June 2013 provide, in essence, that the children live with the mother; that the children spend time with the father in one week from 3:30pm Fridays to 9:30am Sundays; in the other week from 3:30pm Friday until 12:30pm Saturday; each week on Mondays from after school or daycare until the mother finishes work, subject to her working on Mondays; each week from 3:30pm Wednesday until 8am Thursday. At the time of the orders X was 6 years old and the twins were 3 years old.
The boys attend (omitted) Primary School. Only X was attending school at the time the orders were made. Although the father’s application sought a change of school to (omitted)’s, he indicated at the beginning of the hearing that he no longer sought that order.
I was advised at a mention of the matter on 21 March 2016 that the matter was before Judge Scarlett on 8 September 2015 and an application for a Family Report was declined. At that stage the mother did not seek orders other than to dismiss the father’s application. The matter was then put into a call over for final hearing dates, and eventually came before me for allocation of hearing dates.
No application was made for a Family Report when the matter proceeded before me.
Parenting Matter
Both parties seek to vary the final consent orders of 6 June 2013. The father seeks an equal time arrangement of Wednesday to Saturday in one week, and Wednesday to Sunday in the other week. He proposes that the same arrangement continue during school holidays.
The orders sought by the ICL, and ultimately supported by the mother, essentially reconfigure a similar time arrangement to the current orders, in that the children will continue to spend 5 nights each fortnight with the father but with fewer changeovers. The school is utilised for many of the changeovers. The orders provide that school holidays be shared between them equally.
There was initially an argument raised with respect to Rice & Asplund,[3] that is, whether there had been a sufficiently significant change in circumstances such as would require a reconsideration of arrangements for the children. As it emerged at the commencement of the hearing that both parties sought to vary the orders, the matter proceeded with little reference to this argument. Given the position of the parties and ICL and the evidence with respect to the children’s best interests, there is a sufficient change of circumstances to consider whether the current arrangements for the boys are in their best interests.
[3] [1979] FLC 90-725.
The father generally works (omitted) hours. Additionally he is involved in (employment omitted) although he gave no evidence of what hours that work entails. He plans to start a (omitted) business which will presumably require his time (omitted) hours, as may his plans to conduct a (omitted) business. He is generally available in (omitted) hours.
He does not support orders for half school holidays. His view is that the boys are accustomed to the term arrangements and would miss the parent they are not with if separated for a week, or longer at Christmas. He is firmly of the view that for regular time arrangements when one parent is unavailable the children should be with the other, rather than any third party including grandparents.
The mother is self employed as a (occupation omitted). Her evidence is she is able to vary her work hours to fit around the time she spends with the children. When the children are with the father she generally works longer hours so she can work less when the children are with her and maintain her income.
The mother does not have a whole weekend with the children under the current regime nor would she in the father’s proposal. Her evidence when cross-examined was she would like to have alternate weekends with the children and half holidays. She anticipates she can change work arrangements to be available for the weekend time. She could not take half of the holidays off work immediately, although she would change her working hours, as she cannot afford to given the costs of the current litigation. She plans to do that when she can afford to.
Since approximately August 2014 the boys no longer go to the father after school on Mondays, as the mother has changed her work arrangements. She now works Tuesdays and a half day on Mondays. The mother has arranged for X to attend (hobby omitted) after school on Mondays, which she collects him from.
On Tuesdays the children attend (hobby omitted) after school with their maternal grandmother. They have done so since they were very young and prior to the orders. The mother joins them after work at her home for dinner and her mother stays the night.
The maternal grandmother has provided the parties with assistance in caring for the children prior to separation. She is a person who has a significant relationship with the children.
The father views the mother as having varied her working days, so that he “lost time” with the children on Mondays from after school until she finished work. Consistent with his view that the children should be with one parent if the other is not available, he sees time with him as more valuable for the children than with their maternal grandmother.
The father conceded in cross-examination that their grandmother has a significant role in the children’s lives, especially when they were infants. He saw that as being able to be facilitated when the mother was with the children, rather than using time he could otherwise be with them.
A concern for the father was that the children see him weekly, so that there is not a long gap for the children seeing him. When cross-examined by counsel for the mother on a proposal where time occurred on alternate Wednesdays, he was vehement in his opposition as it would be a gap of 9 nights and would not be tolerable for the children in his view.
The children are involved in a number of activities: in the winter season they play (hobby omitted) on Saturday mornings and train Wednesday and Thursday after school. The father coaches (hobby omitted). In the summer season they play (hobby omitted), which has involved time after school on Mondays and Thursdays. They have (hobby omitted) on Tuesdays after school and X does (hobby omitted) after school on Mondays. They also attend some Saturday morning (hobby omitted) through the (omitted) Club with their father. There was no specific evidence about these events which can happen at any time of the year.
The father was clear that he and the mother do not speak to each other at changeovers and cannot in his view attend the same game of weekend sport. The mother’s view is that it is not good for the parties to be in the same place at the moment as the father’s actions create a problem. She would like both parents to be able to be involved in the boys’ activities.
The father’s evidence referred to a letter the mother sent to the executive director of (employer omitted) on 3 December 2012. She raised that the (employer omitted) had not responded to her complaint about the conduct of the father and complained about the way the (employer omitted) had managed the situation of a relationship between the father and another (employee omitted). The letter was known to the father at the time the consent orders were entered into and occurred in the aftermath of the separation. There is no evidence that the mother has persisted with raising issues with the father’s employer. It is not a matter on which I place any weight.
The family consultant, Ms A, met with the parties for a Child Dispute Conference on 19 August 2015 and produced a Memorandum of that meeting. She was cross-examined during the hearing.
The Law
The best interests of the children are paramount when considering appropriate parenting orders. The Family Law Act 1975 (Cth) (“The Act”) provides the legislative pathway to determine parenting proceedings.[4]
The Primary Considerations
Section 60CC (2)
[4] Goode & Goode [2006] FamCa 1346.
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no issue between the parties that these children will continue to benefit from a meaningful relationship with each of their parents. Orders proposed by each parent and the ICL will see the children spending time regularly in each household, which will permit their parents to be involved in their schooling and other activities.
The mother says that following separation the father behaved towards her in a manner that was threatening and harassing. Since the orders of June 2013 she says that the father has continued to behave in an intimidating and threatening manner towards her, including saying things like she is “a mole”, that he is thinking of how to ruin her business, that she should be erased from the earth, that she stole everything from him.
Family violence is defined in the Family Law Act 1975 as being violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. An example given is repeated derogatory taunts[5].
[5] S4AB Family Law Act 1975.
The mother’s affidavit does not refer to any specifics instances of this occurring since May 2014, when she ceased to speak to him over the telephone. When it was suggested in cross-examination of the father that the mother could not cope with speaking to him as he was overbearing, he said that the mother had always had an “over sensitive issue”, which was why they had not spoken in 2 years.
The father minimised any intimidating behaviour by him and was unable to acknowledge that his conduct could be reasonably construed in that manner. I accept the mother’s evidence that she finds him intimidating and at times threatening.
Orders that do not require frequent communication between the parties or for the parties to meet regularly at changeovers are in the children’s best interests given the difficulties they have with each other. At the moment the parents avoid seeing each other at changeovers by texting when they arrive at the other parent’s home so that the children are either farewelled in the car or in the house and make their own way to the other parent. Both parents accept that the children would be aware of tensions in this arrangement.
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.
There is no independent evidence of the children’s views available. The father frequently referred to the children as being “devastated” by things such as not attending all (hobbies omitted), or his not (hobbies omitted). He says he could not do so if the mother attended the (hobbies omitted) each alternate weekend. I accept that the father is extremely invested in being with the children as much as possible. I do not have evidence that the 3 children are as invested as the father in his being present, to the exclusion of the mother, at weekend events.
X is 9 years old, and the twins are 6. Z has had some difficulties at school. Y has had some difficulties with bed wetting. Otherwise there is nothing to suggest their maturity and level of understanding is other than as suggested by their age. Were their wishes known with respect to the time arrangements with their parents, it is unlikely that would be determinative in this matter.
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);
The children share a close and loving relationship with each of their parents on the view of both of their parents. These children also have the benefit of a close relationship with their surviving grandparents.
The orders sought by each of the parties will continue these close relationships.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
Each of the parents have taken the opportunities available to participate fully in the lives of their children. This is not a significant factor in this matter.
Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child
There is an ongoing issue with respect to child support as is detailed below. The mother says that she is currently receiving no child support. The father’s evidence is that it is a problem with the CSA, as he is meeting his obligations by direct deduction from his pay. The pay information from (employer omitted) confirms that arrangement was in place.[6]
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:
[6] Exhibit F3.
(i) either of his parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;
The orders sought by each of the parties and ICL would see the children spending regular weekly time with each of their parents and would not involve a separation from either their parents or grandparents of any significance.
Section 60CC(3)(e) the practical difficulty and expense of a 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.
The parties live in reasonable proximity to each other and neither raises any practical issues or expense with respect to the time the children spend with the parties.
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
Each of the parties have demonstrated the capacity to meet the needs of the children. The father is of the view that the children should be in the care of a parent as much as is possible. He does not accept that the mother should make regular arrangements for the care of the children during their time with her which may involve the children being with their grandmother or another appropriate carer, unless he is unavailable.
Both parents accept that the communication between them is very poor and that they have not spoken for 2 years. In these circumstances building into an order a requirement for them to negotiate arrangements, including for changeovers or holidays is not in the children’s interests. Each of the parents needs to be able to make appropriate care arrangements for the children during their time with them, whether that be during weekdays, weekends or school holidays. Each of them needs to respect that the other parent has the capacity to meet the children’s needs and will do so.
Both parents clearly love their children and want the best for them. However, the dispute between them has affected the father’s capacity, in particular, to consider the children’s emotional needs as separate from his own. The children need to be able to spend time with each of their parents without that being surrounded by tension. Fewer changeovers directly between the parents will assist this. The ICL’s proposals, which the mother joins in seeking, will achieve this. The father says that he would like to achieve this but proposes orders that require the children to move between them each week on Saturday or Sunday.
The father does not want the holidays to simply be divided in half but for the term arrangements to continue. This requires that all changeovers be done between the parties without the buffer of school. It also requires the parents to reach agreements to vary the time arrangements if one of them would like to have a holiday with the children.
The family consultant has not met with the children in this matter. She was able to comment on issues for children in general rather than these specific children. She has met with the parents and is aware of their difficulties in communication. Her evidence is that there are benefits for children in having the least number of transitions possible and not having to manage changeovers directly between their parents if it is possible to do so through school. She was also of the view that children of the ages of these children can manage separations from their parents over holiday periods and that phone and video calls can assist. They may miss the other parent but that does not mean they are being damaged by the separation, as they are of an age they can hold the absent parent in their mind.
The family consultant considered that equal time arrangements where children do not have a primary home require a high degree of co-operation between parents to work. She accepted that her meeting with the parents did not suggest that they have a cooperative relationship at all.
Each of the parents needs to be able to make decisions about how the children’s time in their care is organised without intrusion from the other parent. The father’s capacity to respect the mother’s decisions in this area is limited at the present time.
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
The three boys appear to be, on the evidence of their parents, as mature as their ages suggest. Y has had some issues with bed wetting and Z some difficulties at school. Neither parent appears to regard these as major issues for the children. Otherwise their parents are of similar cultural backgrounds.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
On the father’s proposal the children never spend a full weekend from Friday to Monday with either parent. That is consistent with the orders of June 2013. The mother’s evidence is that those orders suited her working arrangements and the children’s ages at that time.
The mother gave evidence that she would like to take the children to their weekend activities when they are with her on a weekend. She takes them to (hobby omitted) as it falls on weekdays. The mother wishes to be able to take the children to stay with their cousins up the coast from time to time. Her evidence is that she can change her work arrangements to suit the weekend time the children are with her. When questioned by the father that she had not done so to date she referred, reasonably, to the current orders and that she has made her work arrangements to fit with the orders.
The father is of the view that the same arrangements as exist in term time should exist in the holidays, unless either parent requests to take the children on holidays. On his proposal the children move between their parents each Wednesday and on either Saturday or Sunday at 1pm. The parties would be required to negotiate with each other for a full weekend with the children. He says he would agree to the mother having a 3 week holiday if the mother wished to take the children away but not if it meant the children would be spending time in the care of a person other than a parent.
The mother wants an equal divide of the school holidays. She referred to the requirement for a negotiation over drop off and returns every holiday which causes tension between the parents. These have to be done by email or text message as the parents do not speak.
It is in the best interests of these children to be able to have settled arrangements for time with their parents that do not require ongoing negotiations between them and have fewer changeovers. The orders proposed by the ICL and mother provide for that.
Section 60CC(3)(j) Any family violence involving the child, or a member of the child’s family
As referred to above, family violence includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. In answer to questions by the father the mother described herself as under emotional and mental abuse from him and that he is intimidating and harassing. When asked by him she said she would not attend co-parenting counselling with him. She referred to an email sent by the father to her and her solicitor on 12 May 2016[7], as a threat. The email reads in part:
After the hearing, I will be looking at other ways of reaching out to you to stop trying to distance me from the boys [sic]. I have some support from the community and I might use social media. I will continue to do all I can to be more involved in the boys lives. The boys will benefit greatly if we can be amicable. I really want this. Whilst I believe that you’re trying to distance me from the boys, I will be extremely resentful.
[7] Annexure C of the mother’s affidavit filed 16 May 2016.
When questioned about the email the father denied that it was a threat, rather “a moment of desperation, a moment of madness”. In the context of the dispute between the parties the email is threatening, and was designed to be so. The tenor of it is that the mother should agree to what he wants or he will make life difficult for her. It adds force to the mother’s view of the father as intimidating, and suggests that she is not, as he put it, “overly sensitive”.
The mother alleges that the children have been exposed to the father making derogatory comments about her, so that they have returned from time with him and called her a “fucking bitch” “because that’s what daddy calls you”; asked her “why did you steal the house from dad?”; “why are you stealing $200 a week from dad?”; “why did you kick dad out of the house?” I accept that the children have made these comments to the mother. Consistent with the father’s demeanour during the hearing, it is more likely that his views have been communicated to the children at times of anger or frustration, rather than a deliberate campaign to align the children to his views. Unfortunately inadvertent comment is harmful to children and places them in the middle of conflict between their parents.
The father referred in his affidavit to Y as having “a significant scar on the back of his neck”. Y allegedly told his father “nanny scratched me because I was naughty”. The father contacted the mother about that by text message, saying “I really hope he was exaggerating.” When cross-examined about whether he thought the grandmother would deliberately harm Y he referred to his being a mandatory reporter, so he “could not ignore things”. This was not a genuine concern of the father. The mother understands that Y was accidentally scratched by his grandmother when she helped him get dressed. This is an example of the father’s willingness to raise a matter provocatively with the mother, where he clearly did not think the grandmother had acted abusively towards Y.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family
There are no family violence orders.
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.
The parties separated approximately 4 years ago. Final consent orders did not end the disputes between them. It is clearly in the best interest of these children for a cessation of litigation that has occupied a significant period of their lives.
Parental Responsibility
Section 61DA of the Family Law Act 1975 (Cth) requires that when making a parenting order the Court must apply a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. The presumption applies in this matter, and both parents seek orders for equal shared parental responsibility.
The Court must then consider orders for equal time[8] and whether it is in the child’s best interest and reasonably practicable. The inability of the parties to communicate as outlined above makes an order for equal time not in the best interests of these children, and impracticable in terms of the level of co-operation required. The evidence of problems over clothing, and school uniforms makes clear that the parties could not manage such an arrangement. The orders proposed by the ICL and the mother provide for significant and substantial time for the children with the father.
[8] Family Law Act 1975 section 65DAA(1).
Child Support Agreement
The Child Support (Assessment) Act 1989 (“the Act”) provides for parties to reach agreements with respect to Child Support payments outside the child support formula.
The agreement that the parties entered into is a BCSA as provided for in section 80C of the Act. It provides for payment by the father to the mother of $200.00 per week, being $66.67 per child per week and that amount is to be increased in accordance with variations in the consumer price index from 1 July each year. The current total of child support payable is $209.00 per week.
The BCSA provides for further support to be paid by the father at 100% of the shortfall between private health insurance rebates and all medical, pharmaceutical and dental costs associated with the children and such other expenses for the children as agreed between the parties in writing from time to time. The BCSA makes clear at paragraph 7.4 that the total of the non-periodic and periodic child support payable by the father to the mother under the BCSA is intended to be in substitution of any child support assessment.[9]
[9] Binding Child Support Agreement, paragraph 7.4.1.
The BCSA complies with the requirements of the legislation: it is in writing, signed by each of the parties, annexes a statement from solicitors for each of the parties certifying that they have complied with section 80C(2)(c) and an acknowledgment by the parties that they have received independent legal advice. It is common ground between the parties that the BCSA has been registered by the Registrar of the CSA.
Section 136(2) of the Act sets out the power of a Court to set aside registered child support agreements, or termination agreements. The following requirements must be satisfied:
(a) that the party’s agreement was obtained by fraud or a failure to disclose material information; or
(b) that another party to the agreement, or someone acting for another party:
(i) exerted undue influence or duress in obtaining that agreement; or
(ii) engaged in unconscionable or other conduct;
to such an extent that it would be unjust not to set aside the agreement; or
(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.
The father argues the BCSA should be set aside under section 136(2)(b)(i), in particular duress or section 136(2)(d), exceptional circumstances. If the BCSA is set aside, he sought the matter be referred to the CSA for assessment.
The father relies on the following matters in support:
a)His mother died suddenly in November 2012, which was emotionally very difficult for him for some time thereafter. During settlement negotiations the mother and her lawyer said they would wait until his father passed away to resolve the property matter, to “take the inheritance”.
b)When the matter was before the Court on 26 March 2013 he had not filed a response, affidavit and financial statement, and was directed to do so within 14 days. He needed legal assistance to comply and was asked to sign a financial services agreement that estimated the cost of litigation at $138,500.
c)He was told by the mother and her solicitor that if he pursued the matter at court he would only see the children every second weekend.
d)The mother told him she had financial support from her parents with respect to the costs of litigation, and was not concerned about the costs of litigation.
e)He was advised by his solicitor that the court orders could be changed at any time.
f)He understood that the mother would stay in the home with the children. After the BCSA was entered into, the mother leased the home for a period of time from June 2013. He asserted that the mother’s income was substantially more than his income, particularly when taking into account the additional $700 per week from rent of the former matrimonial home.
g)That he spends more time with the children than 35% care, which was the basis of the orders.
h)That the net value of assets received by the mother being her business and the former matrimonial home had a combined value of $1.2 million, whereas the father received an investment unit with an estimated value of $400,000 and cash payment of $20,000.
i)That he was forced to move in with his father because he could not afford to pay rent as well as child support.
The death of the father’s mother in November 2012, some 6 months prior to him signing the BCSA on 31 May 2013 was no doubt difficult. However, there is no psychological or other evidence suggesting that the father was impaired, or in some way made vulnerable by that event.
He had not filed a response, affidavit and financial statement prior to the first return date of 26 March 2013. He was directed to file material within 14 days. He had been aware of the matter for some time; the initiating application was filed on 23 January 2013. The father knew that the mother had commenced proceedings and did not engage a lawyer nor file documents as required. These are circumstances that do not relate to the mother or her legal representative but were entirely within the father’s control.
The father was legally represented, and received advice prior to entering the BCSA and the consent orders.
The mother disputes many of the factual matters asserted by the father. However, even taking the father’s case at its highest there is insufficient evidence to ground the proposition that he was subjected to duress by the mother or her legal representative.
Duress has been found to mean: “the compulsion of a person by physical or mental harm”[10]; with respect to a person entering a marriage “If there are circumstances which, taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage that consent is vitiated by duress and is not a real consent”.[11]
[10] In the Marriage of Kohl (1981) 7 Fam LR 591 at 598
[11] In the Marriage of S (1980) 5 Fam LR 831 at 839.
In Crescendo Management v Westpac Banking Corp[12] McHugh JA stated that:
A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take any alternate course of action. The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.
[12] (1998) 19 NSWLR 40 at 45-46.
In the context of litigation, negotiation between parties may impose pressure on parties. It can be very stressful on those involved. This does not of itself amount to duress.[13]
[13] In the Marriage of Pelerman (2000) FLC 93-037 at 87,589.
The father’s financial statement sets out his total average weekly income is $2,201 per week, comprised of salary from (occupation omitted) and income from a rental property. His expenses referred to in part G are $1,889. He refers to $500 per week for rent although it is noted at part O that rent is not actually paid. Thus the total is $1,389.
The father when cross-examined said he had checked with the Child Support Agency and if the mother’s income is $38,000 (which he refuted) his assessed amount would be $207 per week.
It is for the father to establish that there are exceptional circumstances relating to a party to a BCSA, or a child in respect of whom the BCSA is made, that have arisen since the BCSA that would cause the applicant or the child to suffer hardship if the BCSA is not set aside.
The meaning of exceptional circumstances has been considered in a number of cases. In Keane & Keane[14] Watts J considered the meaning of exceptional circumstances within the context of section 136 of the Child Support Assessment Act 1989:
[14] [2013] FamCA 332.
40. When considering whether or not “exceptional circumstances” exist:
40.1. the whole circumstances have to be taken into account;
40.2. it may be that one circumstance alone cannot be described as exceptional but the whole of the circumstances, when looked at cumulatively, might be described as exceptional (see Gallup & Gallup [2009] FMCAfam 839);
40.3. within a particular context whether something is exceptional is a matter of “fact and degree” (see Simpson & Hamlin (1984) FLC 91-576);
40.4. care must be taken to avoid placing any “gloss” on the word “exceptional” as used in legislation (see Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCA 28);
40.5. the words “that have arisen since the agreement was made” in s 136(2) (d) CSAA direct the Court’s attention to the circumstances that existed at the date the agreement was made and towards an inquiry as to what exceptional circumstances have arisen since the date of the agreement which would result in the applicant or the child suffering hardship if the agreement was not set aside.
At the time the BCSA was entered into the father was a fulltime (occupation omitted) within the (employer omitted) at (omitted). He was in that employment at the time the application was filed. He is currently employed full time as a (occupation omitted) through the (employer omitted) and the (employer omitted). His evidence is that his income from both those sources is approximately the same as his income was when he was a full-time employee.
The father gave evidence that as part of the property settlement he retained a property at (omitted). The property was sold following the orders and he received $160,000 after payment of the mortgage. He says that he then paid out various debts and received net $100,000.
The father owns a property in Western Australia which he estimates as having a value of $380,000 with a mortgage of $365,000. He says that the property is positively geared so that the rent covers the mortgage. The father is in the process of setting up a (omitted) business and a (omitted) business that he will conduct alongside his employment as a (occupation omitted). He also indicated that he (employment omitted) each year. He gave no specifics of his income from that source.
The BCSA requires payment by the father of the shortfall between private health insurance rebates and all medical, pharmaceutical and dental costs associated with the children. The only evidence of any amount paid by the father is at Part N of the financial statement where $20 per week is listed referrable to medical, dental and optical and chemist/ pharmaceutical.
X was enrolled at (omitted) School when the parties were together by agreement. All 3 children now attend the school. The father acknowledged that the children are happy at that school and he no longer seeks a change of school for any of the children.
He says that although there was an agreement with respect to school prior to separation, there was no agreement after separation and he has never been asked to pay towards school fees. The father does not consider the school fees to be an expense that he has agreed to pursuant to the BCSA and does not pay school fees.
The father’s evidence is that he considers his payment of periodic child support meets his contribution to school fees, extracurricular activities such as (hobbies omitted). There is no evidence of any agreed expenses under the BCSA for which he is liable. The mother meets all expenses for school and extra-curricular activities.
The only costs, as I understand it, that the father pays in addition to periodic child support is the boys’ fee for membership of the (hobby omitted) at $50 per annum and (hobby omitted). There is no evidence of the money spent by him on (hobby omitted).
There is an ongoing dispute between the parents with respect to clothing. The father when cross-examined initially said that he has clothing for the children, although he agreed he asked the mother to buy spare school uniforms. He suggested that it was “not a huge issue”. Later he said words to the effect “I thought clothing was covered by child support. I spend money on food and way more on driving”. I accept that the mother buys the bulk, if not all, of the clothing for the children.
The father accepts that an assessment by the CSA would likely produce a similar amount of periodic child support to that in the BCSA. He cross-examined the mother on that premise.
Nothing in the father’s evidence nor submissions points to any exceptional circumstance with respect to setting aside the BCSA. The father’s application to set aside the BCSA is dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Date: 26 August 2016
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
Legal Concepts
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Appeal
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Injunction
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Jurisdiction
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Procedural Fairness
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