MARTEL & BILSON
[2017] FCCA 2875
•23 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTEL & BILSON | [2017] FCCA 2875 |
| Catchwords: FAMILY LAW – Parenting – final orders made in 2015 – changed circumstances – whether presumption of equal shared parental responsibility rebutted – amount of time spent with the father – children’s wishes given weight – mother and ICL seek a sole parental responsibility order. CHILD SUPPORT – Application for a departure order – s.117 Child Support (Assessment) Act 1989 – father’s income not disclosed – earning capacity not utilised – application granted. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss. 116, 117, 118 Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Cases cited: Weir v Weir (1993) FLC 92-338 |
| Applicant: | MS MARTEL |
| Respondent: | MR BILSON |
| File Number: | MLC 1916 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 29, 30, 31 May and 1 June 2017 |
| Interim Orders: | 1 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dixon SC |
| Solicitors for the Applicant: | Lander and Rogers |
| Counsel for the Respondent: | Mr Thomas |
| Solicitors for the Respondent: | Vasilaras & Co |
| Counsel for the Independent Children’s Lawyer: | Ms Mandelert |
| Solicitors for the Independent Children’s Lawyer: | Cathleen Corridon & Associates |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The Applicant Mother (‘the mother’) have sole parental responsibility for the children of the marriage, X (‘X’) born (omitted) 2005 and Y (‘Y’) born (omitted) 2007 (collectively, ‘the children’).
The children live with the mother.
The children spend time and communicate with the Respondent Father (‘the father’) as follows:-
(a)each second Sunday commencing 3 December 2017 from 12.00 noon until 4.00pm, the father to collect the children from the mother’s home at commencement and the mother to collect the children at conclusion from the father’s home. Neither party shall exit their vehicle at changeover and shall text the other party as to their arrival to collect the children. Neither party shall use an agent and must attend in person unless otherwise agreed between the parties; and
(b)by telephone each Wednesday at a time suitable to the children as instigated by the children and in default at 8.00pm as instigated by the father; and
(c)at such other and/or further times and by any means as the parties may agree in writing.
The father’s time with the children as set out in order 4 be suspended during:-
(a)the second term school holidays; and
(b)subject to orders 6 and 7 herein, the long summer school holidays when the children are travelling interstate or overseas, with the mother to provide to the father 28 days written notice of such travel save in the instance of the 2017/2018 long summer school holidays when the mother shall give 7 days written notice of such travel to the father.
The father is to have make up time in respect of 5(b) above as agreed between the parties in writing, such time to be spent within 4 weeks of the children’s return from interstate or overseas.
In 2017 and each alternate year thereafter, the mother is at liberty to take the children out of the Commonwealth of Australia for four weeks holiday in the long summer school holidays as notified to the father in accordance with order 5 herein.
In 2018 and each alternate year thereafter, the mother is at liberty to take the children out of the Commonwealth of Australia for four weeks holiday in the long summer school holidays from 26 December or any date thereafter as notified to the father in accordance with order 5 herein.
In the event that the children have (hobby omitted) commitments on the weekends in school term 3, the father’s time with the children as set in order 4 be suspended with the parties to use their best endeavours to arrange make up time in the week prior to or following the weekend when the time is suspended.
Notwithstanding any other orders to the contrary in these orders, the children spend time with each of their parents as follows:-
(a)on Father's Day, with the father from 9.00am until 5.00pm;
(b)on Mother's Day, with the mother from 9.00am until 5.00pm;
(c)on each of the children’s birthday, with the father from 3.30pm to 6.30pm;
(d)on 23 June each year with the father, from 3.30pm until 6.30pm unless the father advises the mother in writing that he will forego this time;
(e)on 27 December of each year with the mother, from 3.30pm until 6.30pm unless the mother advises the father in writing that she will forego this time;
(f)every second Christmas Day, with the father from 10.00am to 5.00pm commencing Christmas Day 2018.
The mother is at liberty to make any necessary arrangements for the children to continue ongoing therapeutic counselling with Ms L as the mother sees fit.
Each party shall inform the other as soon as possible or in any event within 24 hours of any significant illness or injury sustained by either or both of the children requiring medical attention whilst in their respective care and/or as within their respective personal knowledge.
The parties are to inform the other immediately if either or both of the children is hospitalised and both parents are entitled to attend any doctor or hospital at the time of treatment for the illness or injury.
Both parties are permitted to liaise directly with any medical practitioners or specialists who are treating the children and these orders act as authority for same.
Both parents are authorised to attend all functions normally attended by a parent at school or extra-curricular activities including but not limited to excursions, parent teacher interviews, sporting games, concerts and working bees.
Both parents be authorised to receive at their own expense materials usually provided to a parent from school or extra-curricular activities including but not limited to school reports, photo order forms, newsletters and sporting fixtures.
The parties immediately notify one another in the event that either of them are admitted as an in-patient to a hospital, clinic or other type of health facility.
Each party is restrained by injunction from denigrating or permitting any other person to denigrate the other party to or in the presence of the children.
The parties each provide the other with not less than 7 days prior written notice and particulars of any change of residential address, mobile telephone number and/or email address.
Pursuant to s.118 of the Child Support (Assessment) Act 1989 (Cth) the annual rate of child support payable by the father, Mr Bilson, to the mother, Ms Martel for the children, X born (omitted) 2005 and Y born (omitted) 2007, for child support commencing 1 December 2016 and ending 1 December 2018 as determined by the administrative assessment provisions of the Child Support (Assessment) Act 1989 (Cth), be departed from and fixed hereby at $15,600 save that on and from 1 December 2017 such sum shall be indexed to the Consumer Price Index. Such annual amount is to be paid in monthly instalments into a bank account nominated by the mother on the first day of each month.
The amounts payable by the father pursuant to these orders are to be credited to 100 per cent of the annual rate of child support payable by him under all and any administrative assessments for the relevant period.
THE COURT NOTES THAT:
A.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Martel & Bilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1916 of 2014
| MS MARTEL |
Applicant
And
| MR BILSON |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the parenting arrangements and financial support for the children X born (omitted) 2005, now aged 12 years (‘X’) and Y born (omitted) 2007, now aged 10 years (‘Y’) (collectively, ‘the children’).
The Applicant mother was born on (omitted) 1967 and is aged 49 years. The Respondent father was born on (omitted) 1967 and is aged 50 years. The parties married on (omitted) 2003 and separated on 12 July 2013. In May 2015, the parties then ongoing litigation ended in final parenting orders in part made by the Court and in part made by consent. In March 2016 the mother filed a further initiating application, being these proceedings.
There are three current issues of dispute between the parties that require the Court’s determination. They are:-
a)whether the presumption of equal shared parental responsibility of the children is rebutted;
b)the time, if any, the children should spend with their father; and
c)whether the Court should make a departure order pursuant to s.117(2) of the Child Support (Assessment) Act 1989 (Cth) (‘the Child Support Act’).
Statements of fact in these reasons are findings of fact on the balance of probabilities.
History of the proceedings
The parenting orders of 19 May 2015 essentially provided for the parties to have equal shared parental responsibility of the children and the children to live with the mother whilst having substantial and significant time with the father, which included holiday periods. The orders otherwise provided, relevantly, as follows:-
“…
BY ORDER OF THE COURT AND NOT BY CONSENT:
1(b) That the Mother be at liberty to change the children’s school to any of the following:-
(a) (omitted) School
(b) (omitted) School
(c) (omitted) School
(d) (omitted) School
(e) (omitted) School
BY ORDER OF THE COURT AND NOT BY CONSENT:
…
3. That the children spend time with the Husband 4 nights each fortnight during school term as follows:
(a) From the conclusion of school Thursday in the first week until the commencement of school Monday in the second week and each alternate week thereafter;
(b) From conclusion of school on Wednesday in the second week until 8:15pm.
BY ORDER OF THE COURT AND NOT BY CONSENT:
(c) Notwithstanding anything to the contrary in order 3(a) herein, the children not spend time with their father on those weekends when they are attending (hobbies omitted) and/or training and being no more than four weekends within Term three in circumstances where their Father does not wish to take the children to such activities. In lieu thereof, the father is to have the other and remaining four weekends in Term three.
…
5. That the children spend time with the Husband for half of all school term and long summer vacation holidays by agreement in writing and failing agreement, as follows:
Term Holidays
(a) In odd numbered years, for the first half of all term holidays commencing at the conclusion of school on the last day of term and concluding at the mid-point of those holidays at 1:00pm. In even years for the second half of all term holidays commencing at the mid-point of those holidays and concluding at the commencement of the first day of the new school term.
BY ORDER OF THE COURT AND NOT BY CONSENT:
(i) Save and except that the Mother have the children for two weeks of the second term vacation commencing from 1:00pm on the Friday at the end of the first week of the holidays until the commencement of Term 3 and the Father have equivalent make up time for four days at either the term one or term three vacation in each year provided that he gives 30 days written notice to the wife of which term holidays he elects to have such make up time. Failing such notice then he shall have make up time in Term one holidays.
Long Summer Holidays
(b) During the long summer holidays for the first half of all odd numbered years, commencing at the conclusion of school on the last day of term and concluding at 1:00pm on the day marking the mid-point of those holidays and in even numbered years for the second half commencing at 1:00pm on the day marking the mid-point of those holidays and concluding at the commencement of the new school term.
(c) That each parent be entitled to take the children on an interstate/overseas holiday and that the non-travelling parent shall not unreasonably withhold their consent to the child travelling with the other parent providing the following:
(i) The travelling parent provides the non-travelling parent with written notice of the intended travel 2 months prior to the date of departure;
(ii) The travelling parent provides the non-travelling parent with an itinerary and in the event of overseas travel a copy of the return air fares indicating the departure and return dates for the country or countries to which the child will be travelling;
(iii) The mobile and if practicable the landline telephone number and address at which the child can be contacted in each country/state the child will be staying.
Special Days
6. That in the event the children are living with the Wife the children shall spend time with the Father on special days, as follows:
(d) From 5:00pm the day before Father’s Day until 5:00pm on Father’s Day in the event that the children are living with the wife during the Father’s Day weekend;
(e) On the children’s and Husband’s birthday for a period of three hours if the birthday falls on a school day and for a period of four hours if the birthday falls on a non-school day, to be determined by agreement between the parties, and failing agreement, from after school on a school day and from 10:00 am on a non-school day.
…
13. That neither parent enrol any of the children in any new or optional additional sessions of extracurricular activities that interfere with the other parents time with the children.
…
BY ORDER OF THE COURT AND NOT BY CONSENT:
15. That each party be restrained from removing the children from school for the purpose of taking the children on holiday or participating in an optional extra-curricular activity such as (hobbies omitted) without the written consent of the other parent. Consent will not be unreasonably withheld providing the children miss no more than 10 school days each year in total.
…
19. The children and the parents shall attend upon Ms B for family counselling at the equal joint expense of the parties.
…
AND THE COURT NOTES THAT:
…
D. The parties intend to enter into a Child Support Agreement in relation to the children.”
Some months after the making of these final parenting orders and in late 2015, the children began increasingly to express their disinclination to spend time with their father. In February 2016, the children’s resistance to spending time with their father escalated to a complete refusal. The children were then aged 10 years and 6 months and nearly 9 years respectively.
In light of the above circumstances and other matters, which the mother claimed were changed circumstances that were of such a nature as to permit the re-opening of the matter, the mother sought to vary the final orders by way of initiating application filed 16 March 2016. The mother sought all previous parenting orders be discharged; that she have sole parental responsibility for the children; and leave to be excused from particularising the final orders otherwise sought by her until the production of a family report. The parties and children had not attended upon Ms B as provided for in the final orders made 19 May 2015, despite the mother’s entreaties to the father to so attend. The mother was very concerned about the deteriorating relationship between the children and their father. It included, from the children, an oppositional interaction with their father.
In his response filed on 20 April 2016, the father sought that the mother’s application be dismissed. The father also sought by way of interim orders that the parties attend upon Ms L for family counselling. He had unreasonably and without just cause, refused to comply with the earlier Court order as to attendance upon Ms B and further, in an exercise of shared parental responsibility, refused to allow the children to attend. He was however, as became apparent, prepared to attend upon Ms L.
On 21 April 2016 the Court ordered, relevantly, by consent that:-
“…
1. The children and the parties attend before Ms L (“the counsellor”) for:
a) Family counselling; and
b) Separate counselling for the children.
…
3. The parties forthwith arrange for their child, Y, to re-attend upon Ms A at “Kids Like Us” so Y can receive further support regarding her dyslexia.
...”
On 16 June 2016 the Court ordered relevantly:-
“…
1. Pending further Order commencing 14 July 2016 the children X born (omitted) 2005 and Y born (omitted) 2007 (“the children”) spend supervised time with the Husband each Thursday for a period of three (3) hours between the hours of 5:00pm and 8:00pm or at such time as directed by the nominated supervisor on Thursday afternoon.
2. Changeover shall be facilitated by the nominated supervisor.
3. Family Contact Service or such other professional supervisor as agreed in writing shall supervise the time provided for in Order 1 herein and the Husband and Wife shall pay for the regular supervision expenses, the intake session(s) and written reports associated with same equally as and when required.
4. Orders 3, 4, 5, 6, 7, 8 and 10 of the parenting Orders made 19 May 2015 be suspended pending further Order.
5. The parties and children continue to attend upon Ms L in accordance with Orders made 21 April 2016.
6. That:
a) In the event the children or either of them are competing in the (omitted) School (hobby omitted) their time with the Husband shall be suspended on 8 September 2016 and occur on 17 September 2016 or 18 September 2016.
b) Subject to 6(a) above from 10 September 2016 the children’s time with the Husband shall occur on a Saturday each week for a period of three (3) hours at times nominated by the supervisor (i.e. the Thursday time shall not take place and occur on a Saturday instead).
…”
The father failed to appear at an interim hearing on 24 October 2016. The mother’s costs of the day were reserved and fixed in the sum of $1,650.00.
The father filed an application in a case on 28 November 2016 seeking to revoke order 4 of the orders made on 16 June 2016. On 19 December 2016 the matter was adjourned to 6 February 2017.
The father filed a contravention application on 16 January 2017. This was subsequently abandoned by him.
On 6 February 2017 the Court ordered that an Independent Children’s Lawyer be appointed and otherwise relevantly:-
“…
8. Orders 1,2 & 3 of the Orders made 16 June 2016 be discharged.
9. Until further order, the children, X born (omitted) 2005 and Y born (omitted) 2007 (‘the children’) spend time with the father as follows:-
(a) during school terms, each alternate Thursday from the conclusion of school to 8.00pm commencing 9 February 2017;
(b) during school term 1, each alternate Saturday from 8.30am to 8.00pm commencing 18 February 2017;
(c) from the conclusion of school at 1.00pm on Friday 31 March 2017 to 5.30pm Saturday;
(d) on Y’s birthday (omitted) 2017 from 8.30am to 5.30pm;
(e) on (omitted) 2017 from 8.30am to 8.00pm;
(f) Good Friday 14 April 2017 at 1.00pm to 5.30pm Easter Saturday.
(g) such further or other times as agreed.
10. Until further order unless time is commencing at school changeover, take place outside (omitted) Shopping Centre on (omitted).
11. The father and mother request an updated report from Ms L to be available by 11 April 2017 with the cost to be shared equally and the parties share equally the cost of Ms L attending to give evidence if required.
12. The father be responsible for ensuring the children attend their scheduled extra curricular activities during their time with him being (hobby omitted) for Y on Saturday and (hobby omitted) for both children on Thursday.”
The father filed a further contravention application on 27 April 2017.
On 1 June 2017 and after a consideration of the evidence the Court made interim orders to operate in the months to judgment. Those orders provided that:-
“1. All existing parenting orders providing for the father to spend time with the children X born (omitted) 2005 and Y born (omitted) 2007 are suspended in their operation.
2. Until further order the children spend time with the father each second Sunday from 12.00pm until 4.00pm commencing 4 June 2017, the father to collect them from the mother’s home at commencement and the mother to collect them at conclusion from the father’s home. Neither party shall exit their vehicle at changeover and shall text the other party as to their arrival to collect the children. Until further order neither party shall use an agent and must attend in person.
3. During such time spent with periods as provided for in order 2 herein the children shall not have in their possession mobile phones and shall not communicate with the mother save in an emergency. Likewise the mother shall not communicate with the children save in an emergency.
4. Notwithstanding order 2 herein there be no time spent with in the second school term holidays save Saturday 8 July 2017 from 4.00pm until 8.00pm. On the second Sunday of the third school term 2017 time spent with shall resume.
5. Additionally the children shall spend time with the father on 23 June 2017 from 5.00pm until 8.30pm or 3.30pm until 7.30pm at his election. Such election to be notified to the mother by text or email at least 4 days prior to thereto. In the event such notice is not provided as set out in the order then no time shall occur.
6. The mother is at liberty to lodge a caveat over the real property of the father situated at Property A in the State of Victoria in respect of her application for a lump sum child support payment.
7. Within 30 days of today’s date the father pay to Ms L the sum of $1,650.00.”
The hearing
At the commencement of the hearing the father was granted leave to withdraw his contravention application filed on 27 April 2017 and the mother’s costs were reserved in respect of that application.
On the first day of the hearing, the solicitors for the mother tendered a document (exhibit M-1) containing the orders sought by the mother. Those orders were as follows:-
“1. That all previous parenting Orders be discharged.
2. That the Applicant have sole parental responsibility for the children of the marriage, namely X (X) born (omitted) 2005 and Y (Y) born (omitted) 2007 (collectively, the Children).
3. That the Children spend time with the Respondent as follows:
a. From Sunday, 4 May 2017 and every four weeks thereafter, from 11 am to 2 pm:
b. From Sunday, 18 May 2017 and every four weeks thereafter, from 11 am to 4 pm; and
c. Such other times as the parties may agree in writing.
4. That the Respondent's time with the Children as set out in paragraph 3 be suspended during:
a. the second term holidays; and
b. the summer long holidays when the children are travelling interstate or overseas, and the Respondent have make up time as agreed between the parties in writing.
5. In the event that the Children have (hobby omitted) commitments on the weekends in term 3, that the Respondent's time with the Children as set in paragraph 3 be suspended but the parties use their best endeavours to arrange make up time in the week prior to or following the weekend when the time is suspended.
6. That during special occasions, the Children spend time with the Applicant or the Respondent as follows (with the time provided for with the Respondent and the Applicant at paragraphs 3, 4, 5 or 8 be suspended):
a. On Father's Day, with the Respondent from 9 am until 4:45 pm on Father's Day;
b. On Mother's Day, with the Applicant from 9 am until 4:45 pm on Mother's Day;
c. On 23 June of each year, from 3.30 pm until 6.30 pm unless the Respondent advises the Applicant in writing that he will forego this time;
d. On 27 December of each year, from 3.30 pm until advises the Respondent in writing that she will forego this time.
7. That changeover shall occur at (omitted) Shopping Centre situate as (omitted), (omitted) or such other location as the parties may agree in writing.
8. That the children live with the Applicant at all other times.
9. That the parties shall inform the other as soon as possible or in any event within 24 hours of any significant illness or injury sustained by either or both of the children requiring medical attention or whilst in their respective care.
10. That the parties shall inform the other immediately if either or both of the Children is hospitalised.
11. That both parties are permitted to liaise directly with any medical practitioners or specialists who are treating the children and these orders act as authority for same.
12. That the parties each provide the other with not less than 7 days prior written notice and particulars of any change of residential address, mobile telephone number and email address.
13. That the parties immediately notify one another in the even that either of them are admitted as an in-patient to a hospital, clinic or other type of health facility.
14. That each patty is restrained by injunction from denigrating or permitting any other person to denigrate the other party to or in the presence of the children.
15. That the parties shall communicate with each other as to the arrangements and urgent issues that may arise regarding the children by email and such communication be of a respectful nature.
16. That pursuant to sections 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
Child support
17. That pursuant to section 116 and 117 of the Child Support Assessment Act 198, there be a departure from the current administrative assessment of child support and all subsequent child support periods in relation to the children.
18. That pursuant to section 118(1) of the Child Support Assessment Act 1989 the Respondent pay or cause to be paid to the Applicant by way of child support such sum as determined by this honourable Court with such annual amount to be paid in monthly instalments into a bank account nominated by the Applicant on the first day of each month to increase in 1 July of each year in accordance with the variations in the consumer price index for Melbourne commencing on 1 July 2018.
19. Such further and other Orders as this Honourable Court deems appropriate.”
During the running of the proceedings the mother indicated her consent to the children spending time with their father on the children’s respective birthdays and on each second Christmas Day.
Leave was granted to the father on 29 May 2017 to file an amended response in which he sought the following orders:-
“1. That all previous parenting orders be discharged.
2. That the parents have equal shared parental responsibility for the Children X (X) born (omitted) 2005 and Y (Y) born (omitted) 2007 (the Children').
3. That the Children live with the Mother.
4. That the Children spend time with the Father as follows:-
a. From the conclusion of school on Wednesday, 7 June 2017 and continuing thereafter on an alternate basis;
b. From 9.00am on Saturday 17 June 2017 to 8.15pm on Sunday 18 June 2017;
c. From 9.00am on Saturday 1 July 2017 to 8.15pm on Sunday 2 July 2017;
d. From 9.00am on Saturday 15 July 2017 to 8.15pm on Sunday 16 July 2017;
e. From conclusion of school on Friday 28 July 2017 to 8.15pm on Sunday 30 July 2017 and continuing thereafter on an alternate basis;
f. Thereafter for half all school term holidays:-
i. From 5.00pm on the last day of the school term until 5:00pm on the middle Saturday in even years; and
ii. From 5:00pm the middle Saturday to 8.15pm on the Sunday prior to the first day of the new term in odd years.
g. For 4 weeks of the long summer holidays as nominated by the Father in writing;
h. From 11:00am Christmas Eve to 11.00am Christmas Day in the year 2017 and each alternate year.
i. From 11:00am Christmas Day to 11.00am Boxing Day in the year 2018 and each alternate year.
j. From 5:00pm the Saturday before Father's Day until 8.15pm Father's Day if the Children are not already spending time with the Father.
k. Such other times as agreed in writing.
5. That the time between the Children and the Father be suspended as follows:-
a. Commencing the third school term holiday, Order 4(e) is suspended from the last day of the school term to the first day of the new school term.
b. from 11.00am Christmas Eve to 11.00am Christmas Day in the year 2018 and each alternate year thereafter.
c. from 11.00am Christmas Day to 11.00am Boxing Day in the year 2017 and each alternate year thereafter.
d. or Mother's Day weekend from 5:00pm the Saturday prior to Mother's Day for the remainder of that weekend.
e. On the Children's; and parents birthday, whereby if:-
i. The Children are not spending time with the Father, then from the conclusion of school until 6.30pm if the birthday falls on a school day or for a period of 4 hours if the birthday falls on a non-school day; and
ii. The Children are not spending time with the Mother, then from the conclusion of school until 6.30pm if the birthday falls on a school day or for a period of 4 hours if the birthday falls on a non-school day.
6. For the purpose of changeover:-
a. On a school day, the Children will be collected from the relevant school by the Father, or such other person nominated by him;
b. On a non-school day, the Mother or such other person nominated by her, shall deliver the Children to the Fathers residence at the commencement of spending time and the Father or such other person nominated by him, shall deliver the Children to the Mothers residence at the conclusion of spending time; or
c. Such other location as the parties may agree in writing.
7. That the parent with who the Children are spending time with will allow and facilitate the Children contacting the other parent by telephone when the Children wish to do so.
8. That the parties be restrained by injunction from denigrating, insulting or rebuking the other parent to or within the hearing of the Children.
9. That both parents be authorised to attend all functions normally attended by a parent at school or extracurricular activities including but not limited to excursions, parent teacher interviews, sporting games, concerts and workings bees.
10. That both parents be authorised to receive at their own expense materials usually provided to a parent from school or extra-curricular activities including but not limited to school reports, photo order forms, newsletters and sporting fixtures.
11. That both parents keep each other informed of their contact information including but not limited to residential address, telephone numbers and email and notify the other within 24 hours of a change to any of the details.
12. That should either child suffer an acute illness or serious injury the parent caring for the child notify the other as soon as possible and both parents be entitled to attend any doctor or hospital at the time of treatment for the illness or injury.
Child Support
13. The Applicants application be dismissed.
14. The Applicant pay the Respondents costs of and incidental to the Application.”
The mother relied upon affidavit evidence as follows:-
a)affidavit of Ms Martel sworn on 7 March 2016;
b)affidavit of Ms L sworn on 15 June 2016;
c)affidavit of Ms L sworn on 21 October 2016;
d)affidavit of Ms L sworn on 3 February 2017
e)affidavit of Ms Martel sworn on 4 April 2017;
f)affidavit of Ms L sworn on 21 April 2017;
g)financial statement of Ms Martel filed on 11 May 2017; and
h)affidavit of Ms Martel affirmed on 22 May 2017.
The mother tendered in evidence various exhibits.
The father relied upon affidavit evidence as follows:-
a)affidavit of Mr Bilson affirmed 20 April 2016;
b)affidavit of Ms J affirmed 21 October 2016;
c)affidavit of Mr Bilson affirmed 25 November 2016;
d)affidavit of Mr Bilson affirmed 19 December 2016;
e)affidavit of Mr Bilson affirmed 11 April 2017;
f)affidavit of Mr Bilson affirmed 29 May 2017; and
g)financial statement of Mr Bilson filed 29 May 2017.
The Independent Children’s Lawyer (‘ICL’) relied upon the affidavit evidence of Ms L sworn on 21 April 2017.
The orders sought by the ICL at commencement of the proceedings and by way of an expression of a preliminary view were as follows:-
“1. That the mother have sole parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2007 and that the mother keep the father informed by e-mail of any issues that arise in relation to the children's health, education or wellbeing and that the father be permitted to contact the children's medical practitioner and school to obtain information in relation to the children;
2. That the children live with the mother;
3. That the children spend time and communicate with the father:-
i) On the first Sunday of each month for a period of 3 hours;
ii) On the third Sunday of each month for a period of 5 hours.”
Parenting Considerations
Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) requires the Court to have regard to the best interests of the children as the paramount consideration when making final parenting orders.
Section 61DA of the Act establishes a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for them. The presumption of equal shared parental responsibility may be rebutted in the following circumstances:-
“ (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
The mother seeks sole parental responsibility for the children. The mother claims that the presumption should be rebutted pursuant to s.61DA(2)(b) above, as the father has engaged in family violence. Alternatively, she submits the presumption should be rebutted pursuant to s.61DA(4) on the basis that it would not be in the best interests of the children for the parties to have equal shared parental responsibility, because of the level of acrimony between the parties and because of their inability to co-operate in matters pertaining to the children. Likewise the ICL supports a sole parental responsibility order because of the history of conflict between the parties, and their inability to make parental decisions jointly. The ICL submits such sole parental responsibility should rest with the mother.
The father contends that the mother has taken an obstructive and uncooperative approach to parenting the children and has actively sought to not engage with him in respect of parental decision-making. Further he claims the mother employs a ‘democratic’ parenting approach with the children, which the father contends is not an appropriate parenting model given the children’s age and maturity. Despite the mother and father having different parenting styles however, and their fraught communication, the father submits this in itself does not lead to the conclusion that it is in the best interests of the children for the mother to have sole parental responsibility for them.
In determining the best interests of the children, the Court must consider the matters set out in s.60CC(2) and (3) of the Act. The Court is mindful of these mandatory considerations when examining the evidence contained in these reasons.
Evidence of Ms L
Child and Family Psychologist, Ms L, engaged in reportable therapeutic counselling over time with the parties and their children. Her appointment was by Court order and by consent. She was at liberty to report to the Court and to read the two earlier family reports prepared by Dr J in the course of the earlier proceedings. She was an expert in which each of the parties had confidence. Due to Ms L being overseas, her evidence was given by telephone link. The expert evidence of Ms L was compelling in the circumstances of this case, and is set out in some detail in these reasons.
The parties and children commenced attending family therapeutic intervention sessions with Ms L in May 2016. This followed the father’s earlier refusal of permission for the children to attend upon Ms B, as ordered by the Court. The mother desired therapeutic intervention for the children in their relationship with the father and was willing to consent to a change in practitioner to achieve that outcome. She herself had been attending upon a psychologist since mid 2015 to assist her in parenting the children in a way inclusive of the father despite the difficulties in the parental relationship. She had taken on board the advice of Dr J, and in doing so was acting in an insightful way.
The current interim orders were made largely on the recommendation of Ms L, the Court accepting that the children’s experience of their father was continuing to be distressing to them, and that although they loved him, the children had a poor interaction, and an insecure, fragile emotional attachment (as described by Ms L) with their father. Despite that, the children accepted him as their father and “saw a need to spend some time with him”. Ms L said in April 2017:-
“From the interventions to date, X and Y have some capacity to engage with their father for a 3 hours’ time period. It is noted that such a time frame can be limited, however if supervision is not introduced then extended time appears to be volatile and unproductive.” [1]
Subsequently the Court determined that a four hour period of time spent with, which allowed for travel time and the further maturation of the children would be beneficial to the children.
[1] Affidavit of Ms L sworn on 21 April 2017 at page 14.
Historically, Ms L reported, as to the father, that throughout her sessions with the family in May, June and August of 2016, the father “presented a conflict saturated interaction with his former partner”.[2] The father blamed the mother for “the perceived alienation that he was experiencing”.[3] He saw himself as a father who imposed appropriate boundaries with respect to the children and who had a capacity to say ‘no’ to them. He engaged in “autocratic” parenting. He perceived the mother to be a parent “who indulges the children, empowers them and as a person who uses the children as agents to demonise him”[4] as reported by Ms L.
[2] Affidavit of Ms L sworn on 15 June 2016 at page 9.
[3] Ibid.
[4] Affidavit of Ms L sworn on 15 June 2016 at page 9.
Historically, Ms L reported, as to the mother:-
“Ms Martel spoke of her former partner as a person who was a “fun dad” until his mental health impacted upon his relationships. She sees herself as powerless in the relationship and the current child rejection issues. She spoke of supporting the reconnection of the children with their father as long as it was safe for the girls. She has been responding to the children's narrative of their father's anger, raising his voice, abusive statements, belittling of the children, and not controlling his temper. She believes that Mr Bilson is unable to be empathetic towards the children's feelings and rather focused on himself and his own needs. She sees her need to be protective of the children when they exhibit their distress and anger towards their father. She denies any influence on the children other than to maintain their emotional safety.”[5]
[5] Affidavit of Ms L sworn on 15 June 2016 at page 10.
Historically, Ms L reported, as to the children:-
“The children in their sessions, both individually and together, requested that the therapist provide their father with “help” which meant to help him understand how his behaviours, that they experienced, impacts upon them… they experience their father as never celebrating their achievements but negating them. They have not experienced him in supporting their activities. They spoke of his raised voice, temper, and anger at them. They spoke of these behaviours as being “scary” and not knowing what and how to distract their father when he enters a rage.”[6]
[6] Ibid.
The children, during these early therapeutic sessions, conveyed to Ms L that their father was angry, depressed and treated them badly and that the parental conflict was traumatic for them. They saw their mother as their protection. The father during this time threatened to remove himself from the children’s lives, telling them “the door will be closed” if they sought to come back into his life (as he perceived what was happening) at a later time. This, not surprisingly, greatly upset the children. The father struggled to accept the “individuality” of the children, referring to their ages as not being developmentally able to make their own decisions. He blamed the mother. The children were adamant that they wished for very limited day time with their father, in an effort to reconnect with him, and would agree only to a limited regime of time spent with.
In her report dated 19 October 2016, Ms L reported on some later sessions with the children, and with the children and their father, in September and October 2016. She said of the children then:-
“X in her sessions was clear that although she wants her father in her life she is not yet prepared to spend significant time with him. She still sees her father becoming angry and unable to let the anger dissipate. She describes her father's anger as silence rather than demonstrative and explained that she sees her father settings (sic) his jaw and speaking in a firm tone of voice. She has not seen the softness in Mr Bilson (sic) that she seeks.
Y presents as the primary mediator in the family dynamics. She seeks to resolve the hurt and the impasses in the ongoing conflict with her suggestions and platitudes. Y sees her father as important. She was able to conceive of spending overnight time with her father monthly or six weekly. She also suggested that she and her father could have dinner sessions that will enhance that (sic) the relationship building.”[7]
[7] Affidavit of Ms L sworn on 21 October 2016 at page 10.
Ms L considered at that time, the mother continued to present as supportive of the girls, and that the father needed “to learn a new language to talk with his children”. By this she meant a “circular” language where the father elicited information concerning the children, their needs and interests, and engaged in exchanges of dialogue rather than confronting the children with his authoritative approach. The father’s approach at the time saw the children withdrawing, or retaliating with a subsequent deterioration of the interaction between the father and the children.
By December 2016 the children were spending time with their father, on a limited daytime basis with supervision. The mother was continuing to facilitate the regime of time spent with, and to support the children prior to and following their visits with their father. The father was trying to parent the girls in accordance with his own values. Some fifteen supervised time spent with periods occurred over a three month period. Those times were both satisfactory and problematic, with the children on one occasion hitting their father and at times being completely out of control. The father, to his credit, managed to remain calm and was assisted by the presence of an experienced supervisor. The children however continued to see their father as angry, and on occasion such anger escalated during their times together. The children exhibited, both with their father and in the therapy sessions with Ms L, an emotional dysregulation. The mother indicated a preparedness to have a joint session with Ms L and the father in order to demonstrate to the girls that there was a parental alliance unlike the experience of the children being in their parents “warring worlds”. Unfortunately however the father withdrew his interest in participating in such therapeutic counselling and would not attend a joint session. Notwithstanding all these matters, Ms L said as to the children then spending time with their father:-
“There appears a possibility for there to be an increase in the spending time with arrangements for X and Y with their father. Thus, a full day with Mr Bilson may be the next step to developing a more practical parenting and normalising relationship. This would move the relationship from one of acquiescing to the children's demands continually to maintaining some boundaries. Mr Bilson's challenge is not to escalate into frustration and anger as was observed in the joint session between the children and their father with the therapist …
Ms Martel was prepared to consider extending time for the day and to try an overnight time between X and Y and their father.
…
Mr Bilson's attitude has not altered in that he strongly believes that the arrangements should return to the original Court Orders. He is intending that the children retain the therapeutic assistance but does not want it to be counter-productive by empowering them further and place them in the role of decision maker. Mr Bilson is accepting of further joint sessions with the children. Mr Bilson' approach is that he sees his “parental function” to be important for his daughters. He has not changed from his opinion that he would enforce his order and go so far as seeking police assistance to transport his children from his (sic) mother to their father for his proposed alternate weekend time.
Any discussion with Mr Bilson about the impact of such a proposal was not successful, as he was adamant that he had waited for significant time, having to endure supervised time, which to him was humiliating and he wanted to be “a parent to” his daughters.
It is these unspoken threats that Ms Martel and the children sometimes absorb which raises their anxieties and derails the positive relationship building. It is also these anxieties about Mr Bilson that create the labile emotions observed in X and Y.”[8]
[8] Affidavit of Ms L sworn on 3 February 2017 at page 10.
In January 2017 the mother suggested to the father that he have some limited unsupervised time with the children. That was not taken up by him. The orders made in February 2017 provided for some limited unsupervised day time periods of time spent with. Additionally, one overnight was to be trialled. By April 2017 the father had effectively disengaged from the therapeutic interventions. The then issues in the family, as described by Ms L, were similar to those that existed a year earlier:-
“The family continues to be in ongoing conflict with both parents unable to finalise or come to agreements that work.
Mr Bilson, during his conversations with the writer on the phone indicates that his former partner is deliberately engaging in behaviours that empowers the girls to make their own decisions. He, as a parent sees this as inappropriate as he still sees then as quite young and children who “need to be told what to do and how to behave.”
Ms Martel, in her parenting approach takes a more democratic view and discusses the issues with the girls.”[9]
[9] Affidavit of Ms L sworn on 21 April 2017 at page 9.
The children became apprehensive about the overnight visit with their father prior to its occurrence. What occurred as reported by Ms L was as follows:-
“On the day of the changeover the girls reportedly refused to attend school due to their resistance. Ms Martel was able to facilitate Y attending school and therefore the weekend with their (sic) father, however she was unsuccessful with X.
The changeover then was attempted at the writer's office. X was seen and advised of the arrangement and she was withdrawn and sullen and resistant to any conversation about the coming weekend and the possibility of a new experience with her father. Her sullenness was evident and she became angry with the writer and walked off from the office. Ms Martel attempted to console her, the writer intervened by asking to talk to Ms Martel. Ms Martel explained the strategies she used to enable Y to attend however. She raised issues of Ms (sic) Bilson continuing to become angry with the girls in his home and she noted that this was not helpful to the girls.
Ms Martel and X were invited to speak together about the coming weekend. This again was unsuccessful in facilitating the weekend for X. The writer then allowed the mother and X to leave.
Mr Bilson was invited to speak to the writer and was visibly upset about X's rejection and he was frustrated that she had been allowed by the writer to leave. Mr Bilson and the writer discussed the background to X's resistance as she had attended the previous time with her father, albeit it was for the day. Mr Bilson informed that X had been caught stealing from him and he had chastised her. He noted that this may be the underlying resistance as “no 11-year-old wanted to be caught out.”[10]
[10] Affidavit of Ms L sworn on 21 April 2017 at page 10.
The subsequent weekend time for Y was not positive and the interaction between Y and her father was strained. Y was unco-operative, said her father. Y told Ms L the following, as described by Ms L:-
“Feedback from Y indicated that her father had been “rude to her, had “said awful things about my mummy" e.g. “your mother is not letting me spend time with you.” She described the overnight time as “the worst night of my life". “Dad yelled at me in the morning, he elbowed my collar bone on purpose.” “He says you are not allowed to have a phone until you are 13 and he took the phone away, it was really bad.” Y described the time as deteriorating and when she began to assert herself and object to her father's statements, saying to him that if he did not like her mother, she liked her mother, her father chastised her.
Y described the changeover. She had been concerned because her father was late in collecting her from school. She stated that she had accepted the writer's directions to try to enjoy her time with her father and agreed that she had become very demanding, babyish and unhappy at going especially without X. She went on to describe the travel home to her father's home noting that Mr Bilson had chastised her for wanting to go home to her mother and recalled that he had called her “you are a little shit”. This was in contrast to his patient demeanour that was evident in the writer's room a short time before.
Y and the writer discussed her father's capacity to understand how she feels when he denigrates her and her mother. Y (sic) noted that she was 5 years of age when the separation occurred and feels that she had not developed a strong connection with him. Y contemplated that her father sees her and X as an extension of their mother and not see them as individual children. She said “he thinks we are kinda mum, and he takes his anger on mum on us.”[11]
[11] Affidavit of Ms L sworn on 21 April 2017 at page 11.
X was also interviewed by Ms L. Ms L described X’s views as follows:-
“X felt that since the supervision had ceased her father's behaviour had deteriorated and he was angrier, more denigrating of their mother and of them. She felt that he was not proud of them, compared them to their paternal cousins and felt that they were inconsequential. She felt that her relationship with her father was “going well with supervision, I was beginning to enjoy being with him.” The writer has seen the information from the supervisor as to the home environment which indicate some positive interactions as this was correlated by X's statements.
X described her father reverting to his angrier self now that the supervision ceased and this was part of her resistance.
X also remarked that 3 hours with her father was manageable, however her preference was for someone to be involved as well. X lamented that Mr Bilson “is not like my dad” as she desires a calm, happy person who “does not go mad and take it out on us.”
X acknowledged that she and Y have at times retaliated and abused their father. X noted that “if he yells at us” in such a denigrating way they feel they have to respond and thus have modelled on their own father.”[12]
[12] Affidavit of Ms L sworn on 21 April 2017 at page 12.
Ms L concluded:-
“The girls seek support from the mother who is at a loss to see how to alter the girl's positions. She sees the need for the girls to have a relationship with their father, however, the way the children report to her and her support of them creates an ongoing mistrust of the paternal situation.
…
The emotional attachment between X and Y and their father is insecure and not well established. This is the legacy of the acrimonious relationship between the parents. Such is the discord that this relationship will be superficial at best.
…
In this matter neither of the parents can be in the same room, nor can accept the other parent's view, hence both parents will always be in the position of having to accept what the children say and not be able to support any degrees of parenting. Ms Martel sees Mr Bilson's parenting as deficient, whilst Mr Bilson sees Ms Martel's parenting as empowerment of the girls and to take little or no responsibility for her actions.
From the children's perspective the paternal family sees their mother in such a negative light that they feel a need to confront and argue against this picture. This depth of conflict is the atmosphere that they are enveloped with if the girls' views are accepted. Such ongoing acrimony and perception leave the girls as having a valid alignment with their mother, as they live with her, and seek support from her and experience her differently to the perception of their father. Ms Martel has no other information that would assist her in considering alternatives to the statements that the children say. Further, Ms Martel's own experience of Mr Bilson, as indicated in the material before the Court, may be reactivated by the children's responses and statement.
Mr Bilson has minimal insight into how his daughters consider him and believes that Ms Martel is the influencer in this regard and hence is unable to see any contribution towards the children's complaints. Mr Bilson has raised the issue as to whether the ongoing therapeutic involvement for the girls seeks to reinforce the children’s “need to complaint.”[13]
[13] Affidavit of Ms L sworn on 21 April 2017 at page 13.
In cross-examination by Counsel for the mother, Ms L was asked to comment on what she believed would be the result if the children were made to go and spend weekends overnight with the father. Ms L stated:-
“I think their relationship with their father, as fragile as it is now, would only deteriorate, and there would be – there would be more acting out and more anger on both sides. Mr Bilson might be more frustrated with trying to manage the children’s behaviours. The children have said to – have indicated to me that they do act out at times, especially when their father gets annoyed with them, or says negative things about their mother. So I’m not sure that that conduces straight away, but it’s something to aspire to.”
All of the evidence of Ms L was reliable evidence. Further it was not challenged by the father so as to disturb its reliability. It is important evidence for the Court to consider being both expert and independent. The children’s views, as expressed to Ms L are views the father considers undermine him, regardless of the rationality of such views. Those views however are taken into account by the Court and given significant weight, especially those of the child X. The other evidence in the proceedings is considered, amongst other things, by reference to this reliable evidence of Ms L.
The mother and father
The mother is a (occupation omitted). She is a (occupation omitted) in a Melbourne (employer omitted) in receipt of income of approximately $350,000 gross per annum. She pays the private school fees of the children, their expensive extra-curricular activities, and most of their expenses. In the four years since separation she has been only minimally assisted in the financial support of the children by the father.
Following the making of the 19 May 2015 orders, the children lived with their mother and spent time with their father in accordance with those orders until 25 February 2016. Shortly thereafter the mother filed these initiating proceedings to vary the orders on the basis that the father’s behaviour toward the children was “alarming and destructive” to them and their emotional well-being. The mother asserted the father failed to take care of the children whilst they were in his care; failed to support their curricular, co-curricular and/or extra-curricular activities outside of school hours; refused to facilitate external assistance which Y had attended in 2015 to deal with her dyslexia by withdrawing his support for her ongoing attendance at “Kids Like Us”; refused to co-parent; displayed significant animosity toward the mother in front of the children; and refused to allow the children to have any form of external professional help including attending Court ordered family counselling unless the counsellor agreed to unreasonable conditions he sought to impose.
Those part of the orders entered into by consent between the parties in May 2015 represented some optimism on the part of the mother, and a willingness to try and advance the children’s best interests by enabling a meaningful relationship for them with their father. This was especially so as prior to the making of the orders in May 2015, the children had already displayed an unwillingness to spend time with their father. The mother hoped the making of orders for the children to do so, would reduce the stress occasioned to the father by that situation, which in turn would improve his mental health as she saw it. Following the making of the orders however the mother continued to experience difficulty, and in an escalating manner in having the children attend to spend time with their father. That included, in 2015 and early 2016, the mother “dragging” the children out of her car, the children screaming and crying, in order to comply with the Court orders and to facilitate, as best she could, the father’s time with the children.
In June 2015 the Department of Human Services (‘DHS’) became involved with the family through a report made to DHS by Y’s counsellor Ms A, which alleged that the father’s behaviour toward the children was abusive, with such abuse including yelling, smacking, the father putting his hand on Y’s mouth to stop her screaming and refusing to change the sheets on her bed at night when she had wet the bed. Following DHS interviews with the mother, children and father, no further action was taken by DHS.
There are too many instances of parental conflict to canvass them all here. However one such incident occurred on 18 November 2015 when the mother sent an email to the father attaching a draft calendar for Term 1 of 2016. She asked a series of questions and then asked the father to make any comments he wished as to the draft calendar, as the children needed to be booked into their extra-curricular activities, and after school care around those activities was required to be organised. The mother did not receive a response to the email she had sent to the father until 1 February 2016 (the day Term 1 of 2016 started) being almost two months after she has sent the initial email of 18 November 2015. The response received was argumentative; did not address the specific questions of the mother and raised issues that the mother had already addressed in other email correspondence between the parties. Such lack of co-operation by the father adversely impacted on the children’s welfare. It also continued the conflicted dialogue between the parents.
The mother’s affidavit evidence of 16 March 2016 which was not disturbed by cross-examination and which the Court accepts, set out in some detail the children’s then difficulties with their father as conveyed to their mother. Some examples were as follows:-
a)on the occasions when the mother had been required to forcibly remove the children from her car so as to ensure they spent time with the father, the children had cried and begged their mother not to send them to their father’s house. They said words to the effect: “You know what he’s like mum, he yells and swears at us the whole time, he always calls me a ‘little shit’, we are always late for school when we are with him, he feels our pants before we get into the car in front of our friends to make sure we haven’t had an accident, he picks us up late from school. Please mum don’t make us go, please”. The father accepted in evidence he had referred to the children in the manner described;
b)when the children returned to the mother from the father’s care on the weekend of 23 November 2015, X said to the mother words to the effect: “mum do we have to spend the first 4 weeks of the holidays with Dad? He was so angry this weekend. He yelled at us and was really, really cross. It was so bad that his face was red and his veins were popping on the side of his head”. Y then said words to the effect: “he was so cross Mum that he threw our sheets in our bedrooms, slammed the door behind us and said ‘you don’t deserve to have your beds made. Do it yourself” I went to Dad to say sorry and he yelled at me ‘I don’t want to see you until the morning get back in your room”. Both girls were visibly upset when telling the mother what had occurred at the father’s house during that weekend;
c)the father continued to thwart the children in their (hobbies omitted) endeavours. Despite the May 2015 orders allowing the mother to have an extra 4 weekends with the children in Term 3 to enable them to attend (hobby omitted) training and competition, the father refused to comply with the orders. This was in circumstances where the children had (hobby omitted) since aged approximately three years; competed nationally and internationally; and where (hobby omitted) was a sport they loved which had been encouraged by their father when they were young;
d)not only was face to face time spent with difficult, but telephone communication between the children and their father often did not proceed well. An example occurred on Wednesday 10 February 2016. X rang the father (as required pursuant to the Court orders). He told her he was too busy to take the call. The father called back at approximately 6.50pm and spoke to X. Whilst on the phone X left the room that her mother and sister were in, and moved to the front of the house. At approximately 7.00pm X returned to the family room/kitchen area still on the phone to the father and indicated to her mother (with her hands) that her father was still talking at her. The mother then heard X say “Dad I can’t hear you” and observed her to hang up the phone. The mother asked X why she had hung up and she responded “because he was asking me so many questions about the weekend. I’d had enough mum.” The father rang back shortly after X had hung up on him and began a conversation with Y. After about 5 minutes, the mother heard Y calmly say “Dad I don’t want to talk about this anymore. I’m hanging up”. The father then rang back and appeared to be extremely agitated. Despite being more than three metres away from Y, the mother could hear the father’s raised voice yelling down the phone at her. Y then yelled into the phone “I’ve had enough of your bull crap, Dad”, and hung up on the father. He then began to ring alternatively the mother’s mobile phone, and X’s mobile phone, neither of which were answered.
Other issues have arisen as a result of the parties having equal shared parental responsibility of their children. One example was the mother’s booking and paying for X to participate in a (hobby omitted) over four consecutive weekends, two of which fell in the father’s time. The mother sought out the father’s approval prior to committing to the event. The father agreed, but then failed to take X as scheduled when she was in his care on the weekends. (hobby omitted) was a sport embraced for the children by their father. He wished for them to compete and the mother continued to fund the children’s participation post separation. The father’s failure to follow through with the agreement reached between the parties resulted in distress for X, and inconvenience, at the least, to her team members. It demonstrated, as said by the mother, “a complete disregard for X’s commitment to the team”. When the mother civilly asked for an explanation, the father responded in an aggressive and abusive way as follows:-
“More aggression and non conciliation from you. Another example of you manipulating perceptions, facts and being loose with the truth and distorting reality. Please take on board your own advice.”
The children suffer from recurrent Urinary Tract Infections in relation to which they see a paediatrician every three months and are often hospitalised. The mother has kept the father informed with respect to these visits and hospitalisation and their outcome, and ensures the father has the necessary medication at his home by arranging for an additional script to be completed for him. Further, the mother has left the hospital at times in order for the father to visit the relevant child. On the last occasion, that was Y. The father did not take up the mother’s offer for him to visit Y in a one-on-one situation. The father was not responsive about Y’s ill health or her expressed wish that he visit her. He remained at work obviously confident about the mother’s ability to deal with these important matters, and without insight into an opportunity to further advance his relationship with Y.
The management of the children’s medical condition has been highly problematic, leading the Court to conclude that it is not a responsibility able to be shared. The father’s focus is his animosity toward the mother. He fails to prioritise the children’s immediate health needs. His actions in 2015 in placing eight year old Y back in pull-up nappies overnight, contrary to the requests and instructions of the mother, so as to avoid him potentially having to wash her bed sheets, stymied the efforts then being made by the mother in training Y to stay dry overnight. Further, this retrograde step was upsetting to Y and adverse to her health. Any consistency between the parental households as to dealing with the medical needs of the children as attempted by the mother, are completely undermined by the father.
Following the father spending the summer holidays of 2016 with the children, he returned them to the mother with Urinary Tract Infections, head lice and worms. The father failed to inform the mother of their various conditions. The mother and the children were departing for a holiday to the (country omitted). The mother was left to deal with treating the children’s conditions at the international airport pharmacy. The father’s animosity toward the mother again impacted adversely on the health and wellbeing of their children. The father showed no care nor parental responsibility for his children in the circumstances.
On occasion, the father cannot regulate his emotions in a public setting to the detriment of his children. In September 2015, at the end of the Term 3 assembly, he verbally abused the mother, in breach of the then existing Intervention Order.
The father has used email communications as a means of constantly harassing the mother and unnecessarily and provocatively questioning her actions in relation to the children. The father has the contact details for the children’s paediatrician (Dr S) and the children’s GP ((omitted) Medical Clinic). The father has open access to these professionals and can contact them directly at any time. He does not do so. Instead he bombards and overwhelms the mother by the number of queries and accusations she is required to address resulting from these communications. The father often diverts from the subject in issue to bring up new and irrelevant topics. His tone is often accusatory and denigrating. The evidence establishes that no proper communication to advance the best interests of the children can occur between the parents as a result of the father’s behaviours and responses. There is no certainty as to the children’s future engagements. They can be eradicated, and have been, at the whim of the father. This is clearly not of any benefit to the children.
Consideration
Parenting
The parties have a highly acrimonious relationship. It is clear on the evidence this has had an adverse impact on the children and their relationship with both of their parents. Indicative of this was Y’s comment to Ms L that she “didn’t want to live with either her mother or her father if this conflict persisted.”[14]
[14] Affidavit of Ms L sworn on 15 June 2016 at page 11.
The children have been exposed to family violence by way of their father’s anger and ongoing denigration of their mother. There is a need to protect them from the psychological harm this has caused, and ongoing causes them, by reducing the father’s opportunities to behave in such a way. He has little insight into the damage he has caused. He fails to see, that the mother has, for a considerable time now, attempted to facilitate and support his relationship with the children. She understands that it is detrimental to their welfare to not have a meaningful relationship with their father.
The children are of sufficient maturity and age for their views, as expressed, to be given some not inconsiderable weight. They are both clear in their expression of those views. They want limited time, if any, with their father. They want their father to change and be calmer, more approachable, more supportive of them and their endeavours.
The children’s primary attachment figure is their mother. They are happy and supported in her care. They feel loved by her and love her in return. The children’s relationship with their father is far more complicated. He often fails to meet their needs, emotionally, physically and of course, financially. He is devoid of parental responsibility in respect of the latter. The father lacks insight toward the mother and the children. This creates very real difficulties in the children spending time with their father. And yet there is no doubt he loves them and he cannot understand what has led to his and the children’s current predicament. It has been one however that has been telegraphed for a fairly long time.
By contrast the mother attends to all the children’s emotional, physical and intellectual needs with an abiding love, appropriate discipline, a valid consideration of the children’s input and a reflective judgment. She supports by dint of hard work and consistent application, their various academic pursuits and needs including attending to Y’s dyslexic needs, and the children’s extra-curricular activities. The mother agrees with Ms L that her approach to parenting can be described as ‘democratic’ but within set boundaries such as attendance at school; doing homework; doing chores; not swearing; attending activities the children have committed to. Otherwise, the mother listens to, and considers carefully, the conversation of the children in order to accommodate to an appropriate extent, their wishes.
The mother cannot rely on the father to reach with her any consensus in those important areas of the children’s lives, their health and education, including extra-curricular activities. The evidence discloses the creation of almost farcical situations on the part of the father which impinge not only on the family members but also on external third parties who have no wish to be so included. In the children’s best interests, their mother must have the sole decision-making ability with respect to parenting matters. She is committed to her responsibilities as a parent in a comprehensive way that far exceeds that of the father. As part of that assuming of responsibility, the mother has spent time and money attending upon psychologists and psychiatrists to assist her in parenting the children in a way that seeks to include their father in their lives. In the face of his expression of anger, including verbal and emotional violence, that has been a very difficult task.
There is a practical difficulty for the mother in seeking to have the children spend time with their father when they refuse to do so. Her efforts to facilitate such time, which have improved and necessarily so, since the early period following separation, are often not effective causing distress to the children and their mother. The father fails to see that it is not the mother influencing the children to react badly to him but rather his own past behaviours with the children. The dysfunctional parenting relationship has damaged the children. Ongoing litigation feeds into this dysfunction. It is preferable to make final orders that will avoid further litigation. Those orders will be a rebuttal of equal shared parental responsibility and very limited time spent with orders so the children spend time with their father in accordance with their wishes for limited time. This is the position which both the ICL and the mother urge upon the Court. In time the children may well be amenable to seeking out their father to resume a closer relationship. The Court is confident the mother will support that at such time.
Child Support
Following separation the mother sought to have the level of child support payable by the father for the children assessed by the Child Support Agency (‘the Agency’). As at 12 April 2017, the Agency assessed the father's liability to pay child support based on an adjusted taxable income of $7 for the 2016 financial year, and $300,000 provision income per annum for the mother. This was for the assessment period 1 December 2016 to 28 February 2018. It set in place a payment of child support of $228.83 per month. The mother seeks a departure from the assessment in the amount of $31,200 per annum.
It is the mother’s position that the father's income for the financial year ended 30 June 2016 was substantially more than $7, by virtue of the father’s work as an (occupation omitted) at (employer omitted), and via further streams of income, including dividend payments, rent, and family trust distributions. In an application for a mortgage with the (omitted) Bank (‘(omitted)) dated in or around February 2016, the father disclosed a net monthly income of $4,000 from his full-time employment at (employer omitted). As a result of his earnings and assets, (omitted) Bank offered the father credit of $360,000.
Since the parties separation in July 2013, the father has paid the mother three small sums of child support. The first amount was $325, which the mother received on 1 November 2016. The second amount of $777.85 was received on 11 May 2017 and the third amount of $500 was received on 19 May 2017. The mother has received no other child support payments or contributions to the children’s schooling expenses from the father since the finalisation of all property and parenting matters on 19 May 2015. No Child Support Agreement as noted on the final orders was ever entered into.
In his statement of financial circumstances sworn on 29 May 2017, the father claimed he was an (occupation omitted) in receipt of average weekly income of $157. This income was consulting fees of $80 per week together with share dividend payments of $77 each week. His claimed mortgage expenses of $475 each week with rates, body corporate and other like expenses of $115 each week. He had car expenses and other expenses. His total expenses were $865 each week. He claimed to pay child support of $58 each week. His assets included his equity in an apartment in (omitted), various shares, savings and a motor vehicle. He had superannuation. He claimed to owe his father, Mr B, the sum of $516,000.
The father has qualifications as a (occupation omitted); as a (occupation omitted); and as a qualified (occupation omitted). Post separation the father resigned from earlier employment at (employer omitted). He then, in February 2017, resigned from his part-time casual employment with (employer omitted), which he had structured so as to avoid being a PAYE employee. He received income both personally and via his now deregistered company, (omitted business), to minimise his taxable income. He then commenced to be retained in a voluntary capacity earning $80 each week in consulting fees. Additionally, the father continues to receive rental receipts of approximately $5,000 a year; regular payments from a Trust which have totalled at least $40,000 each year (or $769.25 approximately a week) for the last two years; and dividend payments, including (omitted) dividends. Payments for (omitted) dividends were made on 24 June 2016, 23 September 2016 and 31 March 2017, totalling approximately $4,447.57 alone.
The father was not an impressive witness when cross-examined about his financial position. He failed to produce necessary documents as sought by the other party and other documents to corroborate his own evidence. He, implausibly, had no recall as to many pertinent financial matters which must have been known to him, in particular as he is an (occupation omitted) by qualification and experience. He was evasive in the giving of evidence as to matters going to his income. He chose the evidence he would put before the Court and that which he would not. Evidence as to the father’s financial position was placed before the Court by the mother through the issuing of subpoenas for the most part.
The father did ultimately concede that his income in the last financial year both personally and through his business, (omitted business), was approximately $104,000. Such income will require an amendment to his anticipated provisional income as provided to the Child Support Registrar for assessment purposes. This will have the effect of a creation of child support arrears. The father structured his receipt of income and calculation of same in such a way as to deny ongoing appropriate payments of child support to the mother over a long period of time with a consequent arrears sum accumulating.
The father claims to be in good physical and mental health. He is highly qualified. He is of an age where working full time is the norm for a well-qualified and healthy male. But the father is not inclined to exercise his earning capacity nor disclose his income in a timely way, or at all. His evidence as to job applications made by him was not compelling in the sense he was looking for a limited hours job, and had resigned from his two previous jobs without securing, at the least in the second instance, ongoing employment. Those job applications he did make, indicated as to some of them, a salary of approximately $100,000.
The children attend (omitted) School. The school fees for the children are currently $54,750 per annum. This does not include an amenity fee that is also payable which covers such things as laptop hire and school excursions. Currently the amenity fee for X is $3,720 per annum and for Y is $1,800. Both the school fees and the amenity fee increase each year as the children move to higher year levels and in addition the extra amount is also indexed by approximately 7% each year. Based on the current fee schedule (prior to indexation) the school fees next year will be $58,440. The father makes no contribution to these costs and none is sought by the mother. The mother’s net wage of $212,000 is applied in no small part to the significant expenses of the children. The mother’s wage is high now. Its quantum is not reflective of the mother’s working life.
The mother shall continue to have the care of the children for 100% of the time.
The Court has jurisdiction to proceed with this matter under s.116 of the Child Support (Assessment) Act 1989 (Cth) (‘the Child Support Act’). Section 117 of the Child Support Act which makes provision for departure orders is, relevantly, as follows:-
“CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 117
Matters as to which court must be satisfied before making order
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.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
…
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
…
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child 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:
…
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
…”
Consideration
In the matter of Weir v Weir FLC (1993) 92-338 Nicholson CJ, Strauss and Nygh JJ jointly said:-
“We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings …”
The father failed to make proper disclosure as to his income and financial resources. He also fails to exercise his earning capacity. His receipt of funds into his bank account on a regular basis, being distributions from a trust or monies from his father, are a financial resource available to him. Mr Bilson senior was not called to give evidence before the Court as to the father’s claim that these funds represent borrowings. The Court finds the paternal grandfather’s evidence would not have assisted the father.
The parties agreed for the children to have a private school education. The children attended (omitted) School from aged 3 at the Early Learning Centre, with X spending preparatory class and one term of grade one at (omitted) School before moving back to (omitted) School. The parties re-confirmed their agreement as to a private school education for both children. Additionally, Y’s diagnosis of dyslexia in 2014 further confirmed that choice. In 2015 the father made clear his ongoing desire for a private school education for the children but it is one he does not wish to pay for in any measure.
The Court considers it is ‘just and equitable’ and ‘otherwise proper’ on the facts of this case to make an order departing from the assessment of the Child Support Registrar of an annual amount of $2745.96 which is significantly below that which the father – with his income, financial resources, and earning capacity – should pay. That annual amount shall not be in the sum sought by the mother given the parties respective incomes and the uncertainty of the father obtaining ongoing highly remunerative employment. On the other hand it needs to be an amount that recognises the father’s earning capacity and financial resources and the sums received by him since 1 December 2016. The period will be limited to 2 years before reverting to the usual formula calculation of the assessment amount, which can be challenged by either party, within the Child Support Agency.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 23 November 2017
Key Legal Topics
Areas of Law
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Family Law
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Tax Law
Legal Concepts
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Injunction
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Remedies
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Statutory Construction
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