Masters & Newton - [2022] FedCFamC2F 509

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Masters & Newton [2022] FedCFamC2F 509

File number(s): SYC 4764 of 2009

Judgment of: JUDGE W J NEVILLE

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – PARENTING – long history of conflicted parenting and protracted litigation since 2009 between the parties – matter largely settled by consent at final hearing – discrete issues remaining relate to a restriction on the Father’s living location, overseas travel, various financial orders and child support – where the Mother was primary caregiver of both children until recently – where the siblings are separated and each of them now reside primarily with one parent – where the Mother found to have borne most of the financial costs relating to the children – the Father ordered to repay half of major costs relating to the children for the second half of 2021 – any future costs to be borne equally between the parties – sole parental responsibility ordered for each parent in respect to the child that now primarily resides with them – any relocation by the Father is to be advised to the mother with no less than 30 days’ notice – parties to retain legal advisers to prepare a binding child support agreement.

Legislation:
Child Support Assessment Act 1989 (Cth) s 116(1) & (2), 117

Family Law Act 1975 (Cth) s.60CC(3)(c), (d)

Cases cited:
Mulvany v Lane (2009) 41 Fam LR 418

Slater v Light (2011) 45 Fam LR 41 t

Division: Division 2 Family Law

Number of paragraphs: 53

Date of last submission/s: 9 March 2022

Date of hearing: 18 and 19 October 2021

Place: Canberra

Solicitor for the Applicant: Self-Represented

Counsel for Respondent: Mr O’Reilly

Solicitor for Respondent: Newnhams Solicitors

Counsel for the Independent Children’s Lawyer: Mr Stagg

Solicitor for the Independent Children’s Lawyer: Legal Aid ACT

ORDERS

SYC4764/2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MASTERS
Applicant

AND:
MR NEWTON
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

22 APRIL 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:

Parenting
1.Any medical or dental costs incurred in relation to X while he is in the care of the Mother are to be borne equally by both parents.
2.If the Father plans to move his (and X’s) residence from the region of Town B in New South Wales, the Father must provide the Mother with no less than 30 days’ notice of such intention.
3.If the Father’s proposed relocation is objected to by the Mother, the Mother has leave to file an urgent Application in a Proceeding.
4.In any circumstance where it is proposed, by either parent, that one or either (or both) children travel overseas, no less than 30 days prior to the intended date of travel, the “travelling parent” shall provide to the “non-travelling parent” an itinerary for the proposed trip, together with a copy of the airline tickets for the children and the travelling parent.
5.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
6.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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

Financial
7.Within 30 days of the date of these Orders, being by 14 May 2022, the parties are to retain independent legal advisers with a view to preparing a Binding Child Support Agreement.
8.Within 30 days of the date of these Orders, both parties are to obtain from the Child Support Agency (‘CSA’) a statement of any outstanding arrears of child support. The sum declared by the CSA is to be included in the Binding Child Support Agreement and the date by which it is to be paid (it should be paid within 30 days of the date of the Agreement).
9.Regarding monthly child support (i) an assessment needs to be made by the CSA regarding whether there is the need for payment of any future child support; and (ii) subject to the CSA’s determination of any future child support, the existing amount of child support payable will be the average of the last three determinations of it by the CSA. This amount of child support will continue to be paid until the CSA’s determination issues.
10.Within 30 days of these Orders, the Father is to pay (or reimburse) the Mother half of X’s school fees for his final term in Canberra in 2021.
11.The Father is to reimburse the Mother one half of the costs paid by the Mother for the children’s orthodontic, dental and other health care costs for the 2021 year up to the date of these Orders. These reimbursements are to be paid within 30 days of the Mother providing receipts to the Father.
12.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

AND THE COURT NOTES THAT:
A.Order 3 of the Consent Orders dated 18 October 2021 provided for the parties to have equal parental responsibility for both children;
B.Notwithstanding that Order, the Court suggests that it is more appropriate that the primary parent for each child have principal responsibility for major long-term issues regarding the child, subject to consulting in writing with the non-resident parent and properly taking account any views of that parent; and
C.Subject to any other matters agreed to by the parties, the following issues should be the subject of the Binding Child Support Agreement: (a) arrears in child support; (b) division/reimbursement of the most recent medical and dental expenses for the children; (c) division/reimbursement of the most recent school fees in 2021; and (d) ongoing child support.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Masters & Newton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

Following a hearing, on 18^th and 19^th October 2021, regarding parenting matters concerning the two children of the relationship, X (aged 16) and Y (aged 14 years), the parties, with the assistance of the Independent Children’s Lawyer (“the ICL”), largely settled the parenting issues – which were and remain significant – save for a small number of remaining matters in issue. The “big ticket” items agreed were that X would live primarily with his Father in Town B in country New South Wales (and attend C School, also in Town B), while Y would continue to live primarily with her Mother in Canberra. The respective “spend time with” Orders for the non-resident parent were also generally agreed.
The parties also agreed to a very leisurely timetable for the filing of written submissions regarding the remaining issues to be dealt with by the Court in Chambers, “on the papers.” Given the history of the matter, unsurprisingly, the somewhat limited, outstanding issues in dispute have plainly proved (if more be needed) how intractable the dispute – indeed any dispute, great or small – is between the parents. They consistently display their complete inability, so often, “to see the wood for the trees”, and/or more troublingly, to be able to put their acrid and corrosive co-parenting relationship to one side and to put the best interests of the children above their fractious and debilitating animosity for each other.
The ICL emailed Chambers on 21^st October 2021, attaching Final Consent Orders and noted the unresolved further issues sought by each parent. In summary, the unresolved issues may be considered to be reduced to: (a) a restriction on the Father’s living location, (b) overseas travel, (c) various financial Orders, and (d) the Mother’s Child Support Departure Application. The Father does not agree that Issue (d) regarding Child Support should be determined in this Court. The detail surrounding these matters is set out in the respective Orders sought (set out below), and in the various written submissions of the parties (also set out below).
The ICL indicated that the outstanding issues were largely financial and, in consequence, requested that she be discharged within 7 days of the date of the Orders to allow the ICL to meet with X. Final Consent Orders were published from Chambers on 21^st October 2021 regarding the matters agreed, and the ICL was discharged on 28^th October 2021.
The further Orders sought by the parties, and the further flurry of materials filed, set out below, make plain the discord between them. They bear strong witness to the deeply engrained frustrations and strong disagreements between the parents, reflected also in the very large Court file, which likewise bears witness to the long history of this discord and their inability to co-parent reasonably or satisfactorily. How they can possibly agree to an Order for equal shared parental responsibility remains quite the mystery.
The very significant if not extreme level of conflict between the parties dates from when Y was in utero when the parties separated. I do not understand the date of separation to be in dispute. Nor is it disputed that the Mother has been the primary carer of the children since birth. Nor, it seems, is it generally disputed – because it is a matter of public record according to the Applications on the Court file (actual and virtual) – the significant number of Applications made by both parties in the course of the litigation. Those Applications speak for themselves. Indeed, reading the submissions is/was a completely soul-destroying process. Not one thing, by either parent, is let go. They seem completely incapable of letting go of anything – past or present. It is deeply depressing to think that this is the life the parents have chosen, by default and/or by design, for themselves, and the flow-on effects for the children. There is no forgiveness for past hurts; just litigious revenge.
The one plainly positive thing, and much to the Mother’s credit, is that the mutual bitterness and almost loathing for the other parent has not infected the children and their relationships with both parents. Indeed, as noted in an earlier Report, which is quoted by the Mother in her submissions below, whatever grief and distress the Mother feels towards the Father, she has not let it infect her primary parenting of the children, and she has also plainly encouraged the children’s relationship with the Father. In the circumstances, this has been a remarkable achievement; indeed, a significant self-sacrificing one.
What is also disturbing are the constant Applications to the Child Support Agency (“the CSA”). This matter is discussed at a little length later in these reasons. As an observation only: the use of such Applications, on the face of them, as to frequency and content, appear strongly to suggest a significant degree of manipulation, bordering on abuse, by one or other of the parents. The constancy of the Applications to the CSA effectively means that one or other parents (apparently usually the Mother) has to fight on two fronts on a regular basis. As already stated, there is more to come on this aspect later in these reasons, save to note here (on the Mother’s evidence, which was apparently not challenged on this front) that two such Applications were filed by the Father even during the hearing. “Alarming” is but one of many apposite words.
What is no less concerning, if not surprising, are the number of matters raised by the Mother which are not formally (or in any other way) challenged by the Father. For example, the Mother notes how much she has paid for the children’s school fees with little or no contribution by the Father. The same is true in relation to, for example, to orthodontic treatment. In fact, the word “orthodontic” does not even rate a mention in the Father’s submissions. He may – but the Court simply does not know – say that such matters all come within “child support issues”, which he contends should be dealt with elsewhere. If that be so, in my view it is extraordinary that there is not a single mention of his views on such matters.
What is quite concerning, also bordering on disturbing, is that, notwithstanding the matter formally standing adjourned and reserved on the limited issues outlined, and the agreement for a timetable to file further, brief submissions on those limited issues, the parties have continued the litigious contest by the filing of a further Application and Response, together with further Affidavits. Much of the material set out in these latest filed documents has been canvassed in earlier materials and submissions, almost ad nauseam. No leave was sought to file the latest Application. The filing by the Father seemed to assume (or presume) the Court’s assent or consent to this course. This should not have been the case. This later Application was improperly filed. Additionally, some of these later-filed documents do not otherwise comply with the Rules regarding font size and the like. This is to confirm that, subject to what is stated later in these reasons, strictly speaking, the later-filed documents should be withdrawn or the Court should simply not read them. This Application should never have been filed, noting that the Orders of 17^th February 2022 provided only that a Response be filed. As well as the failure to comply with relevant Rules, the font size of some of the documents makes them barely legible.
The final and important matter to record is that the Mother has recently been diagnosed with a medical condition. In time, currently unknowable, such a significant condition may impact negatively on the Mother’s capacity to look after Y, but one hopes that the potentially debilitating effects of such a disease will not manifest any time soon. Likewise, one hopes that medication and treatment may keep things “at bay” for as long as possible. The Court may take judicial notice of the fact that stress is a significant factor in the care of persons with this disease. Again, one can only hope that some basic humanity, common sense, and even a sliver of compassion, might appear and the parents are able to resolve their ongoing differences.
Applicant Mother’s Orders Sought
The Applicant Mother’s further Orders sought, following the Final Consent Orders, were emailed to Chambers on 21^st October 2021 by the ICL. They were as follows (emphasis in original):
Parenting
1.The Father is restrained from relocating the residence of the Children away from Town B or such other location as agreed in writing by the Mother either in Australia or outside of Australia (noting that the Father works in Country D).
Overseas Travel.
2.Both parents shall be permitted to travel overseas with X and or Y during a school holiday period when X or Y are in their care. The travelling parent shall advise the non travelling parent not less than 35 days of the date of departure of the destination to be travelled to, the departure and return dates from and to Australia and contact details for where X and or Y will be staying while overseas.
3.Should overseas travel require X or Y to be absent from school, or the travel will occur when otherwise Y or X would be with the other parent, the travelling parents shall obtain the non travelling parent’s written consent to the proposed travel not less than 28 days prior to any arrangements being made or booked.
4.The travelling parent shall be responsible for the cost of the travel and any associated costs, including but not limited to vaccinations, and any emergency care costs for themselves and X and or Y unless otherwise agreed.
5.Both parents shall sign any passport application or passport renewal application for X or Y whenever necessary and share the cost equally unless otherwise agreed.
6.The passport for X and Y shall remain with the parent with whom they are living and be provided to the travelling parent if necessary not less than 14 days prior to the date of departure unless otherwise agreed.
7.In the event that any party refuses or neglects to comply with any provision of these Orders:
Financial
8.Should X elect not to live with his Father in 2022 or thereafter, that X remain enrolled at E School and the Mother and Father shall be jointly responsible for all costs associated with X and Y attending E School including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
9.In the event that X and Y attend a school other than E School for the remainder of their secondary education, the Mother and Father shall be jointly responsible for all costs associated with X and Y attending such a school including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
10.In the event that both children live with their Mother and continue at E School, the Father pay half of the tuition fees for both children at E School including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
11.In any event whether or not both children remain living with the Mother, the Father pays child support set at the CSA assessed rate of $1,260 per child per calendar month. That such Child Support shall be payable until the child turns 18. Such amount is payable from 1 April 2020 including any arrears due to the Mother to be paid within six months.
12.In the event that X commences living with the Father no child support shall be payable by the Mother to the Father.
13.In the event that Y remains living with the Mother no child support shall be payable by the Father to the Mother for the period that X lives with the Father.
14.In the alternative to these orders the Mother’s Child Support Application be adjourned to a date to be set by the Court as soon as practicable.
Contained in the same document emailed to Chambers on 21^st October 2021 by the ICL, the following Orders sought by the Respondent Father were not agreed to by the Applicant Mother:
The Mother does not agree to overseas travel without Order 1.
The Mother presses the Child Support Departure Application and that the matter remains listed for determination.
On 7^th January 2022, the Mother emailed Chambers a revised Minute of Orders Sought; they were as follows (emphasis in original):
1.All previous parenting Orders are discharged.
2.The parents have equal shared parental responsibility for X born in 2006 (X) and Y born in 2008 (Y)
3.a) X shall live with and spend time with each parent in accordance with X’s wishes and each parent shall facilitate X spending time and communicating with his parents as per his wishes.
b) Y shall live with her Mother for the next 12 months from the date of these Orders and thereafter Y shall live with and spend time with each parent in accordance with her wishes and each parent shall facilitate Y spending time and communicating with her parents as per her wishes.
~~c) For the purpose of order 3(a) X will commence living with his father on 30 October 2021 with handover to occur at 12 noon at Town F.~~
~~AND IT IS NOTED THAT X INDICATED TO BOTH THE FAMILY CONSULTANT AND THE INDEPENDENT CHILDRENS LAWYER THAT HE WANTED TO EXPERIENCE LIVING WITH HIS FATHER FOR YEARS 11 AND 12.~~
4.Should X elect to remain living with his Father in 2022 X shall attend C School in Town B (“C School”) at the commencement of Term 1 2022 subject to his acceptance at the school. Should X elect not to live with his Father in 2022 or thereafter, that X remain enrolled at E School.
5.For the purpose Of Order 4 these Orders authorise the Father to submit the Enrolment Application for X without the signature of the Mother and the school is at liberty to accept the Application notwithstanding the absence of the Mother’s signature.
6.Should X elect to live with his Father ~~and is enrolled at C~~, the Father shall be solely responsible for all costs associated with X attending ~~C that~~ school, (~~commencing from 2022~~), including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and the Mother is exempt from paying any of the costs as outlined in this Order (see Notation B).
7.Should the Father elect not to provide X with an electronic device, the Father shall transfer $2,000.00 to the Mother in way of a contribution to the costs she incurred for X’s electronic device with such payment to be made by the Father to the mother’s bank account within 30 days of these Orders.
8.The Father shall reimburse the Mother (Notation C) for the costs associated with the child’s enrolment at E School for Term 4, 2021 being $5,436.25 (Notation D), with such payment to be made by the Father to the mother’s bank account within 30 days of these Orders.
9.X and Y shall have liberty to contact the parent that they are not living with at all reasonable times and the parent with whom they are living shall facilitate this contact if required. This shall include but it not limited to ensuring the X and Y have access to their mobile phones, other electronic devices and chargers at all times.
10.Neither parent will restrict either child from communicating with the other parent should they wish to do so in accordance with Order 9.
11.Both parents are to advise each other of their current residential and contact details, including mobile phone numbers, for X and Y and advise of any change in these details within 24 hours of a change.
12.Subject to Order 3 unless otherwise agreed between the parents and considering the wishes of X and Y, X and Y shall spend the first half of the school holidays periods, in even years (in accordance with the enrolled school holiday term), with the Mother and second half with the Father and will spend the first half of the school holidays periods with the Father and second half with the Mother in odd numbered years.
13.That for the purposes of time in Order 12 above, all changeovers will occur at noon at the Town F Courthouse unless otherwise agreed in writing.
14.The school holidays periods for the purpose of these Orders shall commence at 12pm on the Saturday after the last day of school and conclude at 12pm on the Saturday before the commencement of the first day of school of the new school term. The mid-point of the school holiday period is 12 noon on middle Saturday of the holiday period except for the holiday period at the conclusion of term 2 where the midpoint will be 12 noon on the Wednesday of the second week of the holiday period, (noting that the term two school holiday period is 3 weeks).’
15.Unless otherwise provided in these orders, each party be and is hereby restrained from changing the residence of the children from the place at which they presently live (presently Town B, NSW with respect to X and Canberra, ACT with respect to Y) without the written agreement of the other parent or order of the Court.
16.Both parents shall be permitted to travel overseas with X and or Y during a school holiday period when X or Y are in their care. The travelling parent shall advise the non-travelling parent in writing, not less than 35 days prior to the date of departure, of the destination to be travelled to, the departure and return dates from and to Australia and contact details for where X and or Y will be staying while overseas.
17.Should overseas travel require X or Y to be absent from school, or the travel will occur when otherwise Y or X would be with the other parent, the travelling parents shall obtain the non-travelling parent’s written consent to the proposed travel not less than 28 days prior to any arrangements being made or booked and the non-travelling parent shall not unreasonably withhold that consent.
18.The travelling parent shall be responsible for the cost of the travel and any associated costs, including but not limited to vaccinations, and any emergency care costs for themselves and X and or Y unless otherwise agreed.
19.Both parents shall sign any passport application or passport renewal application for X or Y whenever necessary and share the cost equally unless otherwise agreed.
20.The passport for X and Y shall remain with the parent with whom they are living and be provided to the travelling parent if necessary, not less than 14 days prior to the date of departure unless otherwise agreed.
Financial/child support
21.That the Father shall pay 100% of the contracted cost of $8,800.00 associated with X’ orthodontic treatment (Notation E) and that the Father shall transfer $8,800.00 to the Mother in way of his 100% share to the Mother’s bank account within 30 days of these Orders.
22.Should X elect not to live with his Father in 2022 or thereafter and returns to live with the mother:
a)X shall remain enrolled at E School and the Mother and Father shall be jointly responsible for all costs associated with X and Y attending E School including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
b)In the event that X and Y attend a school while living with the Mother, other than E School for the remainder of their secondary education, the Mother and Father shall be jointly responsible for all costs associated with X and Y attending such a school including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
23.That the Mother and Father shall be jointly responsible for all costs associated with Y attending school including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for Y.
24.Child Support will be set at $1260.00 per child per calendar month:
a)In the event that X commences living with the Father no Child Support shall be payable by the Mother to the Father.
b)In the event that Y remains living with the Mother no Child Support shall be payable by the Father to the Mother for the period that X lives with the Father until X turns 18 at which time the Father pay child support to the Mother at a rate of $1,260 per calendar month.
c)In the event that X and Y live with their Mother, the Father pay Child Support to the Mother at a rate of $1,260 per child per calendar month.
d)Child Support shall be payable until the child turns 18.
25.That pursuant to s.123 of the Child Support (Assessment) Act, the Father pay Child Support arrears by way of a lump sum payment of $106,817.22.
Further Orders
26.Both parents are to advise each other of any medical condition, medical appointment or any medical treatment requiring emergency attention of either Y or X while they are in each respective parents care as soon as practicable.
27.Both parents are to advise each other of any medical attention sought for either X or Y and provide the name and contact details of that medical professional to the other Parent as soon as practicable.
28.These Orders shall serve as an authority for either parent to request relevant information from any treating health practitioner that X or Y may attend upon and be provided with such relevant information that a parent would be at liberty to receive.
29.These Orders shall serve as an Authority for either parent to request relevant information from any educational facility that X or Y may attend and be provided with such information that a parent would be at liberty to receive.
30.Both parents shall be at liberty to attend any school or extracurricular activity for X and or Y that a parent would be invited to, and each parent shall give the other parent forty-eight (48) hours’ notice of his/her intention to attend any school or extracurricular activity for X and/or Y provided such notice is practicable.
31.That the Parents are restrained by injunction from:
a)Discussing any disputes in relation to the children’s care arrangements, these proceedings or these Orders with the Children or in the hearing or presence of the Children;
b)Showing or discussing any written communication between the Mother and the Father with the Children; and / or
c)Saying unkind or unpleasant things about the other Parent to the Children, or in their hearing or in their presence.
32.Each parent is restrained by injunction from referring to the other parent in any negative manner in any discussion with, or correspondence to, the Children’s school.
33.In the event that any party refuses or neglects to comply with any provision of these Orders the defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this Order.
d)A Judicial Registrar or Senior Judicial Registrar of the Federal Circuit Court and Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders;
~~34.The ICL shall meet with X, and Y if she wishes to attend, to explain the Orders noting that an appointment has been made with the ICL for Friday 22 October 2021.~~
NOTATIONS
A. THE FATHER SHALL ENGAGE A PSYCHOLOGIST IN TOWN B TO PROVIDE ASSISTANCE TO X AT THE FATHER’S SOLE COSTS.
B. ORDER 6 OF THE ORDERS MADE ON 21 OCTOBER 2021 REQUIRED THE FATHER TO PROVIDE THE CHILD X WITH A LAPTOP. THE FATHER DID NOT DO THAT. THE MOTHER HAS PROVIDED X WITH A LAPTOP TO ENSURE THAT HE CONTINUED TO HAVE ACCESS TO A DEVICE. THE MOTHER PROPOSES THE FATHER CONTRIBUTE $2,000.00 TO THE COST SHE INCURRED IN THE PURCHASE OF THAT DEVICE.
C. NOTING THAT X CONTINUED TO ATTEND E SCHOOL REMOTELY WHILE LIVING WITH THE FATHER.
D. NOTING THAT THE SCHOOL FEES ARE $6,471.25 WITH A $1,035.00 REDUCTION FOR REMOTE LEARNING.
E. NOTING THAT THE MOTHER HAS PAID Y’S ORTHODONTIC TREATMENT IN FULL. ALSO NOTING THE ORTHODONTIST IS BASED IN CANBERRA AND THAT THE MOTHER HAS ARRANGED WITH THE ORTHODONTIST THAT X HAS HIS APPOINTMENTS DURING THE TIME HE IS IN HER CARE.
~~F. IT IS NOTED THAT BOTH PARTIES REQUIRE THE OUTSTANDING ORDERS THAT ARE NOT AGREED TO BY THE PARTIES TO REMAIN BEFORE THE COURT TO BE DETERMINED ON A DATE TO BE ADVISED.~~

The Mother’s further Orders Sought, as set out in her Response to an Application in a Proceeding, filed 3^rd March 2022, were as follows:
1.That the Application in a Proceeding filed by the Respondent 14 February 2022 is found to be non compliant and dismissed
2.That the Application in a Proceeding filed by the Respondent 14 February 222 is found to contain nothing new and dismissed
3.That the Respondent is found to be vexatious
4.That the Applicant is awarded costs
5.That the Court issues a Stay on the CSA proceedings
Respondent Father’s Orders Sought
The Respondent Father’s Further Orders sought were emailed to Chambers on 21^st October 2021 by the Independent Children’s Lawyer. A copy of the Orders Sought, collated by the ICL, was annexed to the Father’s Submissions emailed to Chambers on 11^th November 2021. They were as follows (emphasis in original):
1.That the Mother’s Application for a child support departure order be dismissed.
The Mother presses the Child Support Departure Application and that the matter remains listed for determination.
Contained in the same document emailed to Chambers on 21^st October 2021 by the Independent Children’s Lawyer, the following Orders sought by the Applicant Mother were not agreed to by the Respondent Father:
The Father does not agree to Order 1 as sought by the Mother.
Orders 8 to 14 not agreed to by the Father.
The Father’s further Orders Sought, as set out in his Application in a Proceeding, filed 17^th February 2022, were as follows:
1.The Orders made by His Honour Judge Neville on 10 December 2021 be dismissed in respect to the Applicant’s application seeking Child Support departure orders.
2.The matter be listed for Hearing for one day in respect to the Applicant’s Child Support departure application only.
3.Within fourteen (14) days from the date of orders being made, the Applicant and Respondent comply with their obligations to provide full and frank disclosure pursuant to Rules 6.01, 6.02 and 6.6 of the Federal Circuit & Family Court of Australia (Family Law) Rules 2021.
4.That the parties be granted leave to issue any Subpoena.
5.That the Applicant pay the Respondent’s costs of and incidental to this Application.
The Applicant Mother’s Submissions
The Applicant Mother’s submissions were emailed to Chambers on 7^th January 2022; they were as follows (emphasis in original):
I, Ms Masters, the Applicant Mother affirms that:
1.   This written submission has been prepared as a supplement to the material already filed on the three discrete remaining issues being:
a.   An injunction on the Respondent from moving X from Town B;
b.   The children’s expenses; and
c.   The Applicant’s child support departure application.
2.   It is to be read alongside the Mother’s draft Minute of Order attached as well as the material filed in support of this matter including:
a.   The Mother’s affidavit filed 21st June 2019 (MA 21/06/19)
b.   The Mother’s affidavit filed 29th September 2019 (MA 29/09/19)
c.   The Mother’s affidavit filed 29th September 2021 (MA 29/09/21)
d.   The Father’s affidavit filed 24th June 2019 (FA 24/06/19)
e.   The Father’s affidavit filed 28th September 2021 (FA 28/09/21)
f.    The Father’s affidavit filed 15th October 2021 (FA 15/10/21)
g.   The Family Report filed 8th November 2013 (FR 08/11/13)
3.   Firstly, the Applicant Mother submits that this matter is not a dispute over parenting, despite the Respondent Father’s protestations, noting that:
a.   if the Father had wanted more time to be involved with the children, the Mother has provided many opportunities, and the Father has refused them (MA 29/09/21 paragraphs 72 and 73, and MA 29/09/19 paragraphs 3 to 8).
b.   if the Father had wanted to play a more positive role in the interests of the Children, he would not have undermined the Mother’s parenting (MA 29/09/21 paragraphs 68 and 69) unlike the Mother, who has promoted the Father’s relationship with the Children (MA 29/09/21 paragraph 7) and as observed by the Family Consultant (FR 08/11/13 paragraph 41):
They have been cared for predominantly by their mother throughout their lives and in spite of X being very young and Y being in utero when the parents separated both children appear to have a positive relationship with their father. It is extremely unlikely this would be the case unless their primary carer, Ms Masters, had not facilitated and encouraged their relationship with their father. Mr Newton does not seem to realise this.
c.   if the Mother had wanted to deny the Father access to the Children, she would not have willingly facilitated X’s relocation to Town B (refer to Order by Consent dated 19 October 2021), that could have been achieved without the Court’s involvement (MA 29/09/21 paragraphs 6 through to 9, 54 and 55, 62, and 74).
d.   if the Father was genuinely committed to his Children there would be evidence of his efforts to see the Children, enquiries after them, and contributions to key expenses such as orthodontics (MA 29/09/21 paragraphs 70 to 74, and 132 to 136).
4.   At its core, this matter is about the Father’s need to control the Mother (MA 29/09/21 paragraphs 147 to 173).
5.   Noting this matter began over a request from the Mother to the Father to sign a passport application in accordance with Order by Consent dated 13th November 2013 at Order 8. This was immediately seized on by the Father as an opportunity to gain control. The Father has a history of exploiting the Mother’s need to travel to undermine her employment (MA 29/09/19 paragraphs 9 to 13).
6.   The Father’s recent efforts to control were exhibited by a demand to the Mother that she not travel: then his demands escalated. Refer to FA 24/06/19 in which the Father documents in the course of over 22 pages his opinion that the Mother be punished for being disorganised (note that the Mother works full-time and has had full-time care and manages all of the administration, medical needs and covers the expenses of the Children, MA 29/09/21 paragraphs 72 to 73, and 132 to 133); makes unsubstantiated accusations of abuse (MA 29/09/19, paragraphs 19, 24 to 30); threatens the Mother about her financial position (see for example FA 24/06/19 paragraph 124); and expresses bewilderment over the Mother’s ability to cover the Children’s expenses and travel (see for example FA 24/06/19 paragraph 123); all the while justifying his poor financial position and inability to financially contribute (FA 24/06/19 paragraphs 113 to 120, and MA 21/06/19 paragraph 19).
7.   In light of the complex and high conflict history of this matter, it is important that any Orders made mitigate conflict and minimise the ability of the Father to control the Mother. This is even more important in light of the Mother’s recent diagnosis of a medical condition.
Issue 1. Relocation of the children
Reference: Minute of Orders – Order 15.
8.   In FA 28/09/21 at paragraph 137, the Father states that he has been offered a position in Country D that he has accepted and intends to fulfil when Covid restrictions permit.
9.   The Father has worked in Country D before and was previously married to Ms G, a Country D national. X was born in Country D. The Father and Ms G live together when the Father travels to Sydney. The Mother submits that the Father has close and enduring ties in Country D and motivation to relocate there, and although Country D is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, it is a difficult convention to effect.
10.   The Mother further submits that in the past, the Father has worked in Sydney and Darwin and there is a possibility he may attempt to relocate causing further disruption to X (X) education and wellbeing.
11.   The Father has protested the inclusion of this Order on the basis he has no intention to relocate, on which basis the Mother fails to understand why this Order is contested.
12.   The proposed Order 15 as mutually applicable. The Mother submits that Order 15 is upheld.
Issue 2. The Children’s expenses
Reference: Minute of Orders – Order 6, 7, 8, 21, 22 a & b and 23.
13.   Over the last 14 years, the Father has made a total contribution towards the Children’s expenses of$1,402.00 (MA 29/09/21 paragraph 132).
14.   The Mother has cov13.ered the remainder of the Children’s expenses being $345,350.00* (MA 29/09/21 paragraph 135, and attachment “27”).
* NB. The figure $345,350.00 is for ‘prescribed expenses’ as described in the Child Support Assessment Act of 1989. Prescribed expenses do not include regular living expenses and under the Child Support Assessment Act, they can be absorbed as a credit of up to 30% of a child support liability. Because the Father has carried the Child Support liability, he has already effectively contributed towards $55,520.00 of prescribed expenses through his Child Support contributions. It can be deduced that under the Child Support Assessment Act the Father would have contributed $144,045.00 ($345,350.00 minus $55,520.00 becomes $290,894.00, half of which is $144,045.00).
X’ school expenses
15.   On 30th October 2021, X went to live with the Father in Town B from where his Father home schooled X through the E School remote learning facility. To assist the seamless transition for X and to facilitate the Father’s education of X, the Mother continued to pay 100%of school fees for E School during this period.
16.   On 19th October 2021, the Father agreed to pay for all costs relating to schooling, should X elect to live with him. However, the Father later retracted that agreement and has since not made a contribution to Term 4 school fees.
17.   The Mother submits that in accordance to Order 6 and Order 8 of the Minute of Order, the Father be responsible for all costs associated with X attending school.
18.   The Mother submits that this expense is $5,436.25 (refer to Notations “C” and “D”) and that the Father shall transfer $5,436.25 to the Mother in way of his share to the Mother’s bank account within 30 days of these Orders being made.
Children’s orthodontic expenses
19.   During the course of 2015 to 2021, Y (Y), has had a series of orthodontic treatments. The earlier treatments were to address sleep apnoea (a stroke indicator). Later treatments were to correct her bite and realign her jaw. Y still has orthodontics. The Mother has paid $18,000.00, which is the whole amount without any support from the Father (MA 29/09/21 paragraphs 136 and 137 and attachment “27”).
20.   In 2020, X commenced orthodontic treatment. To date, the Mother has paid $4,852.00 for X’ orthodontic treatment which it is anticipated will finish later this year. There is a balance of $3,948.00 remaining (totalling $8,800.00).
21.   The Mother submits that as per the Minute of Order, Order 21, the Father be responsible for X’ orthodontic expenses and that the Father transfer $8,800.00 to the Mother to the Mother’s bank account within 30 days of these Orders being made.
22.   The Mother submits that she will continue to facilitate the orthodontic appointments which are in Canberra and can be arranged to occur when X is with the Mother during school holidays.
Children’s’ school expenses
23.   The Mother has paid the school fees and expenses for X (from year 7 until year 10) and Y (from year 7 until year 8) to date, in full. With the school expenses being approximately $25,000 per year, this amounts to $100,000 for X’ schooling and $50,000 for Y’s schooling (MA 29/09/21 attachment “27”).
24.   The total approximate schooling expenses covered by the Mother to date are $150,000.
25.   Future school fees for X will be approximately $50,000.
26.   Future school fees for Y will be approximately $100,000.
27.   Noting that in the Orders of 22nd October 2021 at Order 6, the Father agrees to being responsible for the schooling expenses of X (approximately $50,000).
28.   The Mother submits that as per the Minute of Order, Order 23, the Father and Mother be jointly responsible for all costs associated with the education of Y.
In the event that Y remains at E and X attends C, this will mean that the Mother’s contribution to the Children’s education is approximately $200,000, and the Father’s contribution to the Children’s education will be approximately $100,000.
29.   The Mother further submits that as per the Minute of Order, Order 22, that should X elect not to live with his Father in 2022 or thereafter and returns to live with the mother:
a.   X shall remain enrolled at E School and the Mother and Father shall be jointly responsible for all costs associated with X and Y attending E School including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
b.   In the event that X and Y attend a school while living with the Mother, other than E School for the remainder of their secondary education, the Mother and Father shall be jointly responsible for all costs associated with X and Y attending such a school including but not limited to all school fees, school uniform costs, learning materials including electronic devices, any costs associated with any extracurricular activities for X and Y.
30.   The Mother submits that appropriate financial arrangements are made with the appropriate schools to facilitate separate invoicing arrangements as well as liability.
Issue 3. Child support departure application
The child support departure application consists of two parts:
1.   A binding child support agreement
2.   Child support arrears
A binding child support agreement
Reference: Minute of Orders – Order 24.
31.   The Father relentlessly engages the Child Support Agency as a weapon against the Mother and as a way to avoid his child support responsibilities. For example, over the last 14 years, the Father has initiated an average of 7 child support assessments per year or one every 7 weeks (MA 29/09/21 paragraph 84 & 85). During this hearing alone, the Father has initiated 2 applications to the CSA to change your child support assessment in the following timeline:
a.   27th September 2021 – Affidavits due
b.   28th September 2021 – Father files affidavit
c.   30th September 2021 - Father makes a 50 plus page application to the CSA to change your child support assessment. In this application, the Father claimed he had an income of $50,000. The CSA found he had an income of $92,712
d.   5th October 2021 – Father files a financial statement claiming an income of $36,660 and also details personal pre tax expenses equalling $36,660 per annum
e.   15th October 2021- Father files an affidavit affirming he can increase his weekly expenses by$1,014 to cover X, meaning his pre tax expenses are now $89,388 per annum
f.    18th October 2021 – Father files a “Notice Requiring Financial Information” stating he had accrued a total of $48,047 in legal fees from June 2021 until 15th October 2021*
*        The Father’s bank statements show that on the 26th April and 20th May 2021, the Father deposited a total of $12,100 into the family business trust account. On 20th June, $4,730 was refunded meaning the Father spent $7,730.00 on family law advice. Therefore, up until 15th October 2021, the Father had accumulated a total of: $55,777 (before tax) of legal fees representing a taxable amount of $72,501.
g.   25th November 2021, the Respondent Father made another 50 plus page application to change your child support assessment. In this application, the Father claimed again that he had an income of $50,000. The CSA again found that the Father had a taxable income of $92,712.
32.   The Mother submits that it is plain that the Father’s claims regarding his income are attempts to avoid providing for his children. For example the income required to support the Father’s personal expenses (31.d. $36,660), X’ expenses (31.e. $52,728) and the Father’s legal expenses up until October (31.f. $48,047 plus $7,730) is actually $145,165 before tax or $188,714 taxable. Also his expenses at$36,660 equals his income (also at $36,660) which doesn’t account for tax, and doesn’t include the Child Support he contributes.
33.   The Mother submits that the constant process of assessment, reassessment, objection, administrative assessment, change of assessment, supported by massively detailed and voluminous documentation designed to confound is a clear example of abuse. The Mother seeks to remind the Court that during this time the Father has not had care of the Children, while the Mother is both having to respond to the Father’s tireless applications as well as be a full time parent. The Mother submits that as well as being a waste of her time it is an appalling waste of tax payer resources.
34.   For these reasons, the Mother submits that an Order is made for a Binding Child Support agreement in accordance with the Minute of Order, Order 24
Child support arrears
35.   The Father harasses the Mother continually regarding her financial circumstances and abuses the Court and CSA processes as well as using any other invasive means available to him to extract her personal financial data. The Father has not clearly articulated why he requires this information.
36.   The Mother submits that the Mother’s financial situation is essentially immaterial to the Child Support Assessment and therefore the Father’s baseless accusations and relentless investigation can only be interpreted as harassment and abuse. The Mother demonstrates this immateriality through the modelling discussed in MA 29/09/2021 paragraphs 138 to 145. Specifically in scenario 3 (MA 29/09/2021 paragraphs 144 to 145), the Mother demonstrates that even in the unlikely event that both the Mother and the Father earn $200,000, the Father is still over $40,000 in arrears.
37.   This while the Mother has been caring for the Children all the time: the Father is unencumbered with only had 3 weeks care a year. The rest of the year, the Father is free to work as he pleases without having to worry about the Children’s expenses, their medical appointments, dental and orthodontic schedules, extracurricular activities, coming home after work and worrying about homework and all the other things parents worry about because the Mother is doing that.
38.   During this time the Father has not actively engaged in any of the children’s activities, school or otherwise, let alone made any financial contribution.
39.   Regardless of the Mother’s commitment to supporting the Children, the Father has actively gamed the Child Support system in order to ensure his assessments are as low as possible (MA 29/09/2021 paragraphs 82 to 131).
40.   The Mother submits that as has been shown in paragraph 31 above, the Father has exactly enough income to cover exactly which expenses it pleases him to cover at exactly the time it pleases him to do so. This was evidenced during the hearing of 18th to 19th October 2021 when the Father was able to raise an additional $52,728 (31.e above) to support X at the same time he was filing applications to the CSA stating that he had an annual income of $50,000.
41.   In summary, the Father has as much income as he needs, when he needs it, at liberty to pursue start ups (at a loss – see FA 28/09/2021 paragraphs 128 and 144, as well as the detail between), as well as many other companies, for example Company H, Company J, Company K to name a few (MA 29/09/2021 attachment “19”). It therefore follows he a). has the ability to work, and b). can earn an income if he so chooses, and c) can contribute to his children but chooses not to.
42. The Mother therefore submits that pursuant to s.111 and s.98S of the Child Support (Assessment) Act, the Mother seeks leave for the Court to make a departure from the Child Support Agency (CSA) Administrative Decision dated 23rd March 2021, and rely on the CSA Administrative Decision dated 7th February 2020, that sets the Mother’s adjusted taxable income at $160,000.00 per annum and the Father’s adjusted taxable income at $210,000.00 per annum.
43.   That pursuant to s.116, s.118 and s.98S of the Child Support (Assesement) Act, the Mother seeks leave for the departure to cover the period from 27th September 2012 to date.
44. That pursuant to s.123 of the Child Support (Assessment) Act, the Father pay this Child Support arrears by way of a lump sum payment of $106,817.22.

The Applicant Mother emailed further submissions to Chambers on 11^th February 2022; they were as follows (emphasis in original):
I, Ms Masters, respond to the Father’s Submission dated 27th January 2022:
1.That in respect to the issue of restraint,
a.The Father’s own evidence provided in an unnumbered paragraph on the unnumbered and second page of his undated Submission emailed 27th January 2022 contradicts his claims.
b.The Mother notes that her Order 15 applies to relocation generally – not only overseas and is designed to protect X from further disruption in his final years at school. The Mother reinforces her points made in her Submission filed 6th January 2022 and notes that her concerns are heightened by the Father’s protestations.
2.That in respect to the issue of overseas travel (a new issue raised in the Father’s submission),
a.The Mother doesn’t understand where the confusion lays between the issues of removing residence and overseas travel.
b.The Mother notes the Fathers’ point made at the second page after the quotation of his own affidavit that in order to compromise, he will agree to an order to overseas travel if he is constrained to countries that are signatories to the Hague Convention. The Mother seeks to remind the court that she lived in China, the Children have travelled to China several times with the Mother, the Mother and the Children speak Mandarin (albeit poorly), the Mother has always brought the Children back from China, and China is not a signatory to the Hague Convention.
c.It is not clear if the Father’s intent is to ‘by omission’ end up with the result that the Order he seeks to have applied to him is applied also to the Mother. In which case this proposal is unlikely a genuine attempt to compromise.
3.In respect to the issue of the Child Support Departure Application,
a.The Mother asserts her proposed Orders at paragraph 24 are clear and the Fathers’ comments on the second page and second paragraph of his Submission are incorrect.
b.In the next paragraph, the Father expresses concern about the Mother’s lack of disclosure. The Mother made full disclosure in accordance with His Honour’s orders on 16th December 2019.
c.The Father made a partial financial disclosure 2 years late on the 17th of October 2021, the Sunday evening the night before the Final Hearing. This act had the practical effect that the Mother did not have access to the Father’s material prior to the hearing. It could also be understood to have the practical effect of rattling the Mother or attempting to derail the Mother by besieging her with hundreds of pages of detailed financial data the night before a final hearing. It certainly didn’t have the practical effect of compliance.
d.The Father further asserts he has new evidence about the Mother’s income that he did not have prior to the Final Hearing. There are two aspects to this:
i.Firstly, the Mother did not have access to the Father’s financial information prior to the trial due to his non-compliance (refer to “c” above)
ii.Secondly, this ‘new evidence’, comes from an application the Father made to the Child Support Agency on 25th November 2021.
e.At the time of this application, a decision had not yet been published on the previous application made on the same grounds by the Father on 30th September 2021. The Mother had already given evidence to the CSA to rebut the grounds and therefore when the CSA contacted the Mother again, the Mother emphasised she has a medical condition and is tired and could they please use the same rebuttal as before.
f.In the 30th September 2021 application, the CSA found in the Mother’s favour – where both the Mother and the Father filed evidence.
g.In the 25th November 2021 application, the CSA found in the Father’s favour where only the Father filed evidence (The CSA did not use the 30th September rebuttal material as requested).
h.Therefore the Father’s argument that he has ‘new evidence’ is circular, in that he provided the evidence to the CSA, the Mother (who is disabled) couldn’t muster a rebuttal, and the CSA relied on the Father’s position and found in the Father’s favour.
4.The Mother reminds the Court that she has a medical condition. The Mother further reminds the Court that this medical condition is a degenerative neurological disorder that affects movement. People with this medical condition struggle to work full-time, need to sleep during the day, struggle to write and obviously are not functioning 100%. The Mother’s future earning capacity is severely curtailed and may come to an abrupt end with little or no notice. The Father’s assertations made in his submission are a hideous taunt.
5.The Mother asserts that since the Father learned she had a medical condition in 2021, he has demonstrably increased his pressure on her. For example, he filed CSA applications on 30th September and 25th November, against both of which he has now filed objections, and has also filed numerous affidavits from 29th September, and is now making threats to file further applications.
6.The Mother seeks to remind the court that this is a matter about X and Y’s best interests.
7.It is in everyone’s interests, most particularly X and Y, that a stop is put to the assault of CSA applications, objections and change of assessments that the Father continually subjects the Mother to. The Mother urges the court to order a fair binding child support arrangement as per paragraph 24 of her Minute of Order.
8.The Mother notes that in one household lives a Father free from disability, with professional qualifications and a 20 year history of working to a high income raising a son, and in the other household lives a Mother with a medical condition and a daughter who is a childhood stroke survivor.
9.The Mother further seeks to remind the court that she has brought children up alone: in doing so, she has taken responsibility for over $345,350.00 of the Children’s expenses. The Mother notes that during the same period the Father had taken responsibility for only $1,402.00 of the Children’s expenses (MA 29/09/21 para 132). The Mother observes with interest that while the Father has not financially contributed to his Children’s upbringing, he is however, willing to pay a lawyer $55,777.00 (at least up until 15th October) to assist him to continue to avoid contributing to his children’s upbringing.
10.Meanwhile, if the Court were to indulge her, the Mother would welcome the opportunity to cross examine the Father on his evidence regarding his financial position and in turn, be subjected to cross examination.
11.Finally, the Mother seeks to take the opportunity raised by His Honour on 19 October 2021 for costs in her favour. In accordance to Section117 of the Family Law Act 1975, the Mother notes that the Father is silent on the issue of costs (which were reserved), and that the Court had said that due to the Father’ non-compliance that cost were to be awarded to the Applicant. On this basis the Mother seeks that the court make an order that the Mother have costs as agreed and failing agreement that the Mother apply for costs to be taxed.
The Mother filed a further Affidavit and Response to the Father’s Application in a Proceeding (noted below), both filed on 3^rd March 2022, plus further submissions on 9^th March 2022. Those brief submissions were as follows:
I, Ms Masters, point out the errors and misinformation in the Father’s submission dated 8 March 2022:
1.I have not failed to comply with my obligations to disclose. I lodged an objection;
2.My ANZ account shows all my incoming income;
3.As a consultant, I have the choice to be engaged either as an employee through PAYG or by direct contract – whatever the method, the outcome is the same. I am currently exercising this choice by selecting to work through PAYG, mainly because I am tired and am struggling to manage the extra administration required as a sole trader;
4.Company L has never been registered as a company, it is a business name, registered with ASIC and I have never claimed that I am anything other than Ms Masters, trading as Company L.
Furthermore:
5.The Father says he is content to engage with the CSA, indeed, this is in fact the issue, he engages with the CSA endlessly;
6.The Father says the parties use the CSA to obtain a Child Support Assessment and seek variations from time to time. This statement implies a normalcy, however the Father’s practice of seeking assessments and variations is incessant;
7.The Father says he pays according to the CSA assessment. This is my point. The Father has obtained favourable assessments on the basis of declarations that are far from candid;
In response to His Honour’s question as to why he should hear this issue, I say:
8.This ongoing and ceaseless pattern of application, objection, obfuscation as well as other administrative processes is harassment and can only be stopped by the Court. The Court is a higher authority, and I believe a Binding Child Support Agreement, made by the Court, would halt this harassment and the waste of public administrative resources.
9.The Court has the authority to apply a CSA departure 7 years in arrears whereas the AAT can apply 18 months in arrears and the CSA 3 months. Given the Father’s long history of gaming the CSA formula, this is relevant to this matter;
10.The application of evidence and procedure lead to justice that cannot be applied by an administrative agency. I refer to paragraph 101 in my affidavit filed 28 September 2021 using this to the Children’s’ detriment;
11.It is clear that these complexities and the Father’s obfuscation need to be addressed by a judicial mind.
The Respondent Father’s Submissions
The Respondent Father’s submissions were emailed to Chambers on 11^th November 2021; they were as follows (emphasis in original):
These are submissions prepared on behalf of the father in respect to Orders sought by Mother, which remain in dispute as between the father and the Mother in respect to the two children X born in 2006 (X) and Y born in 2008 (Y), those orders being the orders provided by the ICL, Linda McGregor to the Court on 21 October 2021, and which are annexed and marked "A" ("the disputed orders")
1.Restraint
Orders have now been made by consent that the parents have equal shared parental responsibility for X and Y.
That Father submits that there is not a scintilla of evidence to suggest that he is intending to relocate the children's residence from Town B where he has resided (with periods elsewhere) since 1973 or that he has even suggested that he would relocate the children's residence. The Mother had filed no evidence to support her assertion on the order that she now seeks.
The Father at paragraph 79 of his Affidavit filed on 28 September 2021 (the father's affidavit) states that he has spent each Christmas period with the children, except for the 2019/2020 Christmas period, at Town M/Town B.
Since the commencement of these proceedings, the father has been residing permanently at his mother's home in Town B, having returned to reside in Town B in 2017 due to his father's ill health, and subsequently because of his mother's ill health.
The Father has enrolled X into C School in Town B in accordance with the orders made by consent and approved by the court on 21 October 2021.
2.Overseas Travel
The father submits that the parents had agreed to the orders to travel overseas, being orders 2-7 of the disputed orders however, the mother no longer consents to the father travelling overseas without the father agreeing to the aforementioned restraint.
The Father submits:
(a)The mother provides no evidence that he is a flight risk.
(b)The mother provides no evidence that the father has ever taken the children and refused to return the children.
(c)The mother asserts without basis or any evidence, that the father works in Country D. This assertion is incorrect and at paragraph 137 of the father's affidavit filed 28 September 2021, his evidence is:
"In July 2019, I was appointed as a professional in the Employer N, Country D. The position was intended to involve my travelling to Country D for a couple of weeks a couple of times a year. During the visits it was agreed I would be paid the salary of a Country D professional (about $4,000 AUD per month). This has not yet occurred owing to the current COVID restrictions. I do not know when I might travel to Country D and if I do, and X is living with me, I would organize for Ms Masters to stay with X and my mother in Town B for the time I am away. I do not expect I would be gone for more than 2 or 3 weeks at any one time. During 2021 my only involvement has been to do some Zoom conference calls and to jointly write some research papers, and for which I have not been paid"
The Father further submits, and in an effort of compromise and without admissions, that he is prepared to agree to an order that if he were to travel internationally with the children, he would only travel to Hague Convention Countries, of which Country D is one.
3.Child Support Departure Application
The mother seeks a myriad of orders with respect to the payment by the father to her by way of a child support departure application, including an order, that was not in the mother’s Reply filed that the father is to pay her children support regardless of whether or not either or both children remain living with her.
The Father seeks an order that the mother's child support departure application be dismissed for the following reasons:
a)The father has been assessed to pay child support to the mother by the Child Support Agency. The father currently meets his ongoing payments in accordance with the current administrative assessment. At paragraphs 119 & 120 of the father's Affidavit the father gives evidence of the amount he has paid in child support since 2009 and what he continues to pay. There is no evidence that the father has never not paid, or refused to pay, child support to the father.
b)Both parties have relied on and engaged the services to apply for child support, a change of the child support from time to time including for special circumstances, through the Department of Human Services, and as recently as 20th September 2021. As part of that ongoing process the Department of Human Services has on 22 October 2021 issued a notice to my accountant to provide evidence in respect of all my affairs, and there is every reason to believe the Department has full information about my situation to make a determination according to the act.
c)The mother provides no evidence in respect to any of the assessments hat she has disagreed with those assessments or the decisions that have been made in respect to a change in circumstance application and lodged a written objection seeking a review asking the child suppo1i Registrar to reconsider particular decisions made under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.
d)More importantly, the mother has not provided full and frank disclosure of her financial circumstances despite the order made by the Court on the mother's request on 30 October 2019 that the parties provide full and frank disclosure.
e)On 16 September 2021, a subpoena to produce documents was served on the Proper Officer, Company L returnable on 30 September 2021, which is the business that is operated by the mother. On 2 October 2021, the mother filed an objection, outside of time. Notwithstanding that the objection has been filed late, that objection would require determination by the Court othe1wise the father is denied procedural fairness.
f)Further, at paragraph 153 of the father's affidavit, the father gives evidence that on 29 November 2019, and 2 December 2019 he sent an email to the mother's then legal representative requesting disclosure from the mother, which was not complied with. At paragraphs 157 and 158, the father's evidence is that on 23 January 2020, he served a Notice to Produce on the mother, who ignored the Notice to Produce.
g)On 17 September 2021, the father caused a further Notice to Produce to be served on the mother, which was sent to her email address at … .com requiring production of documents by 15 October 2021. No documents have been produced by the mother, who now asserts that she did not receive the Notice to Produce.
h)The Mother is aware of her obligations to provide full and frank disclosure and it is submitted by the father that the reason the mother will not comply with her obligation is because she does not want the father nor the court to be aware of her true financial position. Accordingly, the Court should dismiss the mother's application.
The Respondent Father filed an Application in a Proceeding on 14^th February 2022, with a supporting Affidavit affirmed on that same date. The Father’s further submissions were emailed to Chambers on 27^th January 2022. They repeat much of what was in his original submissions emailed to Chambers on 11^th November 2021. His submissions were as follows (emphasis in original)
These are submissions prepared on behalf of the father in respect to Orders sought by Mother, which remain in dispute as between the father and the mother in respect to the two children X born in 2006 (X) and Y born in 2008 (Y), those orders being the orders provided by the ICL, Linda McGregor to the Court on 21 October 2021, and which are annexed and marked "A" ("the disputed orders").
1.Restraint
Orders have now been made by consent that the parents have equal shared parental responsibility for X and Y.
That Father submits that there is not a scintilla of evidence to suggest that he is intending to relocate the children's residence from Town B where he has resided (with periods elsewhere) since 1973 or that he has even suggested that he would relocate the children's residence. The Mother had filed no evidence to support her assertion on the order that she now seeks.
The Father at paragraph 79 of his Affidavit filed on 28 September 2021 (the father's affidavit) states that he has spent each Christmas period with the children, except for the 2019/2020 Christmas period, at Town M/Town B.
Since the commencement of these proceedings, the father has been residing permanently at his mother's home in Town B, having returned to reside in Town B in 2017 due to his father's ill health, and subsequently because of his mother's ill health.
The Father has enrolled X into C School in Town B in accordance with the orders made by consent and approved by the court on 21 October 2021.
2.Overseas Travel
It appears from the mother's submissions that she accepts that both parties may travel internationally with the children. What is not clear is whether the mother maintains her objection that the father not be permitted to travel with the children internationally unless he agrees to a restraint from moving his residence. The father submits that the parents had agreed to the orders to travel overseas, being orders 2-7 of the disputed orders however, in the event that the mother does maintain an objection, which is unclear from her submissions, the father submits:
(a)The mother provides no evidence that he is a flight risk.
(b)The mother provides no evidence that the father has ever taken the children and refused to return the children.
(c)The child X, now resides with the father and is attending C School in Town B.
(d)The mother asserts without basis or any evidence, that the father works in Country D. This assertion is incorrect and at paragraph 137 of the father's affidavit filed 28 September 2021, his evidence is:
"In July 2019, I was appointed as a professional in the Employer N, Country D. The position was intended to involve my travelling to Country D for a couple of weeks a couple of times a year. During the visits it was agreed I would be paid the salary of a Country D professional (about $4,000 AUD per month). This has not yet occurred owing to the current COVID restrictions. I do not know when I might travel to Country D and if I do, and X is living with me, I would organize for Ms Masters to stay with X and my mother in Town B for the time I am away. I do not expect I would be gone for more than 2 or 3 weeks at any one time. During 2021 my only involvement has been to do some Zoom conference calls and to jointly write some research papers, and for which I have not been paid"
The Father further submits, and in an effort of compromise and without admissions, that he is prepared to agree to an order that if he were to travel internationally with the children, he would only travel to Hague Convention Countries, of which Country D is one.
3.Child Support Departure Application
The mother seeks a myriad of orders with respect to the payment by the father to her by way of a child support departure application, including an order, that was not in the mother's Reply filed that the father is to pay her children support regardless of whether or not either or both children remain living with her.
What is concerning is the mother's lack of disclosure in respect to her financial position and the father will within 7 days of these Submissions, file an Application in a Proceeding as the father has received new evidence that was not before the Court provided to him by the Child Support Agency which includes a decision by the Child Support Agency which finds that the mother has a taxable income of $294,000; that despite the mother informing the CSA on 5th January 2022 that she was unemployed she was in fact at the time in full-time employment at an ongoing income of $231,000; that the mother he has been overpaid $3,721 in child support by the father, and a fu1iher determines that the mother should in fact be paying the father child support at the rate of$1,000 pcm from 30 October 2021. Accordingly, the Court could not make any orders in respect to the mother's application for a child support departure Application for this reason as well as the following further submissions.
The Father seeks an order that the mother's child support departure application be dismissed for the following reasons:
(a)The father has been assessed to pay child support to the mother by the Child Support Agency. The father currently meets his ongoing payments in accordance with the current administrative assessment. At paragraphs 119 & 120 of the father's Affidavit the father gives evidence of the amount he has paid in child support since 2009 and what he continues to pay. There is no evidence that the father has never not paid, or refused to pay, child support to the mother.
(b)Both parties have relied on and engaged the services to apply for child support, a change of the child support from time to time including for special circumstances, through the Department of Human Services, and as recently as 20th September 2021. As part of that ongoing process the Department of Human Services has on 22 October 2021 issued a notice to the father's accountant to provide evidence in respect of all his affairs, and there is every reason to believe the Department has full information about the father's financial circumstances to make a determination according to the act.
(c)(The mother provides no evidence in respect to any of the assessments for any of the periods that she seeks a departure, that she has disagreed with those assessments or the decisions that have been made in respect to a change in circumstance application and lodged a written objection seeking a review asking the child support Registrar to reconsider particular decisions made under the Child Support (Assessment) Act 1989 and the Child Supp01i (Registration and Collection) Act 1988.
(d)(More impo1iantly, the mother has not provided full and frank disclosure of her financial circumstances despite the order made by the Court on the mother's request on 30 October 2019 that the parties provide full and frank disclosure.
(e)(On 16 September 2021, a subpoena to produce documents was served on the Proper Officer, Company L returnable on 30 September 2021, which is the business that is operated by the mother. On 2 October 2021, the mother filed an objection, outside of time. Notwithstanding that the objection has been filed late, that objection would require determination by the Court otherwise the father is denied procedural fairness.
(f)Further, at paragraph 153 of the father's affidavit, the father gives evidence that on 29 November 2019, and 2 December 2019 he sent an email to the mother's then legal representative requesting disclosure from the mother, which was not complied with. At paragraphs 157 and 158, the father's evidence is that on 23 January 2020, he served a Notice to Produce on the mother, who ignored the Notice to Produce.
(g)On 17 September 2021, the father caused a further Notice to Produce to be served on the mother, which was sent to her email address at … .com requiring production of documents by 15 October 2021. No documents have been produced by the mother, who now asse1is that she did not receive the Notice to Produce.
(h)The Mother is aware of her obligations to provide full and frank disclosure and it is submitted by the father that the reason the mother will not comply with her obligation is because she does not want the father nor the court to be aware of her true financial position. Accordingly, the Court should dismiss the mother's application.
It is submitted on behalf of the father that parents have the primary duty to maintain their children and that duty has priority over all commitments of the parent other than commitments necessa1y to enable the parent to support themselves.
Under the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"), where there is a child support assessment in force, a child support departure application can be dealt with by a court if there are already other proceedings before the court and the court is satisfied that it would be in the interests of the parties to consider whether a child support departure order should be made for a child in the special circumstances of the case.
The application is required to be served upon the liable parent and the Child Support Registrar. The Court does not have evidence from the mother that she has served the application on the Child Suppo1i Registrar.
An application for a departure order must establish three things:
1.   That in the special circumstances of the case there is a ground for departure;
2.   That it is just and equitable to make a departure order; and
3.   That a departure order would be otherwise proper.
Circumstances will be 'special' if there are facts peculiar to this case that set it apart from other cases.
When assessing whether a person's earning capacity is greater than their income, the court must be satisfied of a number of matters set out in subs 117 (7B) of the Assessment Act including that the person has reduced their hours of employment or changed their occupation or working pattern and that decision is not justified on the basis of the parent's caring responsibilities or state of health and the person has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
In determining whether it would be just and equitable to make a child support departure order the Court must have regard to the matters set out in s 117(4) of the Assessment Act.
In determining whether it would be otherwise proper to make a particular child suppo1t departure order the Court must have regard to the matters set out in s 117(5) of the Assessment Act.
Accordingly, the Court could not find that it should make an order in respect to the mother's application and further, the Court must be satisfied that it is just and equitable to do so and this cannot be done unless due process if afforded to the parties including that the parties have the oppo1tunity to object to the affidavit material that has been filed, and cross examination of the parties has occurred. Moreover, the new evidence must be before the Court in respect to the mother's current financial circumstances.

On 8^th March 2022, the Father filed yet further submissions. They were as follows:
The Respondent Father relies on his submissions filed and served on 11 November 2021 and 27 January 2022 and is content to continue to engage the process with the Department of Human Services in respect to all aspects of child support assessments, and engage in the standard appeal course that may be initiated by the Applicant Mother.
The Respondent Father filed the Application in a Proceeding on 14 February 2022, in circumstances where if the Court were minded to make a departure order as sought by the Applicant Mother, he sought to reserve his position for the matter to proceed to a final hearing.
The Application for a Child Support departure order by the Applicant Mother ought be dismissed with costs. Submissions and the evidence filed by the parties show a history that the parties have always used the Child Support Agency to either (a) obtain a child support assessment and (b) sought variations from time to time relating to an administrative assessment of child support. It is undisputed that the Respondent Father has paid child support in accordance with assessments issued.
The Court would not be satisfied that there are any special circumstances of the case as set out in s117(5) of the Assessment Act, that would justify a ground for departure and it would not be just and equitable for the Court to make a departure order, particularly in circumstances where the Applicant Mother has been less than candid about her financial circumstances in these proceedings. She has failed to comply with her obligations as to disclosure of all relevant documents; the ANZ Bank statements subpoenaed by the Respondent Father do not show any information or details of the Applicant’s Mother’s current earning; the Applicant Mother provides no evidence to reconcile her statement that she is a consultant with the evidence of the CSA that they spoke to her employer and identified her as being in full time employment; and the Applicant Mother now suggests she is not the business owner of Company L.
In the absence of cross examination, the Applicant Mother’s actual income and employment status remains an issue in dispute. The Applicant Mother has also not produced documents pursuant to a Notice to Produce served on her.
Outline of Principle
Given (a) the wide range of parenting matters that have now been resolved, (b) the very narrow scope of the contest between the parties that now remains, and (c) the consent arrangement whereby X now lives with his Father in Town B, and Y continues to live with her Mother in Canberra, I need only note the following by way of basic principle. There also needs to be proper account taken of (i) the ages of the children, and (ii) the regrettably poor co-parenting relationship. By the reference to the ages of the children, I simply intend to refer to the reality that any Orders regarding 16 year old X are, at best, of marginal utility. Apart from the agreed arrangements for his schooling, it is difficult to see what utility any Orders are. Similar comments, with not quite the same force, could apply equally to Y, given her age. The only possible exception regarding X (outside of education expenses which are now to be paid exclusively by the Father) would be, as the Mother indicates, when he returns to spend time with his Mother and sister in Canberra. In those circumstances, in my view, any medical or dental costs should be borne equally by the parents.
First, in Mulvany v Lane, at [76] and [77], the Full Court said (emphasis in original):[1]
[76] It is important to recognise that the miscellany of “considerations” contained in ss.60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[77] It needs also to be remembered that the importance of each s.60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s.60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[1] Mulvany v Lane (2009) 41 Fam LR 418.
Secondly, in Slater v Light, at [45], the Full Court said:[2]
The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3) …
[2] Slater v Light (2011) 45 Fam LR 41.
Thirdly, to the degree relevant and stated more formally, the “considerations” under Part VII of the Family Law Act 1975 (Cth) (“the Act”) that are most relevant to the remaining issues to be determined are in s.60CC(3)(c) and (d) of the Act. The latter consideration of course relates to matters of practicality, such as cost of travel and the like. While other matters are raised by both parties about the legion number of areas of incapacity and delinquency of the other parent in relation to both parenting and related financial matters, without independent evidence and cross examination of each parent, I cannot make any formal findings on the broad range of allegations set out in the rather voluminous materials filed.
Fourthly and finally, there are few areas of the law that are more dependent upon the capacity of the parties to exercise their abilities in “problem solving.” This necessarily requires a degree of pragmatism also; sometimes the Court even ventures to suggest “compromise”, but unfortunately this is not a word that features often, either in the vocabulary, or in the actions, of the parties here. My approach below involves a degree of pragmatism and, hopefully, a focus on problem-solving, still having regard to what is ultimately in the best interests of the children. In this regard, their best interests are overwhelmingly served by the parents ceasing to fight and to act like responsible adults rather than, as often has seemed to be the case over the years, like recalcitrant teenagers. The squabbling and feuding has to end. This has to include Applications to the CSA, a genuine form of control. On current and long-term evidence, the question even needs to be asked whether the parental contests will stop when each child retains his and her majority. On current indications, by that stage, for the entirety of the children’s lives, their parents will have been in a contest of some kind, and regular litigious battles since 2009. What a tragedy! One can only wonder, but equally lament, what a much better life each of the children, and each of the parents, could have had if the fighting had stopped years ago and even the most basic “business-like” approach to parenting had been undertaken. Indeed, it is disturbing that the Father submitted that any matters of child support should continue to be pursued through the CSA. In the usual course, this would, of course, be appropriate. On the facts here, such as they are, the continued Applications to that Agency could almost constitute vexatious litigant status.
Consideration and Disposition
Somewhat summarily, the following brief reasons provide the bases for the Orders, and notations, of the Court. As already stated, doing the best the Court can in the circumstances, a quite pragmatic approach has been taken to the remaining issues to try to bring this wretched litigation – for the parents as well as the children – to a reasonable conclusion.
Issue 1: Regarding whether there should be a restriction on the Father’s living location, which is to say that he not move (and not be permitted to move), while-ever X lives with him in Town B and attends school there. In this regard, I note that the Father says that he has no intention to move from this area, not least because his Mother continues to live in Town B. I note too that the Father confirms that, due to academic commitments, and subject to pandemic restrictions, he will have to go to Country D from time to time. Of course, such does not constitute a change in living situation either for him or for X.
Again noting X’s age and that he has effectively only two years of schooling left anyway, rather than place a blanket ban on the Father moving his primary residence from Town B, and likewise changing X’ school from C, a somewhat similar effect can be achieved by other means to provide the certainty sought by the Mother (and inferentially by X) regarding the stability and certainty of schooling for X.
In my view, to ensure that X has the certainty, stability and predictability required for his final years of high school, should the Father plan to move from the region of Town B in New South Wales, which would also mean a change in school for X, he is to provide the Mother with no less than 30 days’ notice of such intention. If such a move is not agreed, the Mother is permitted to bring an urgent Application to the Court to challenge it. One hopes most earnestly that such a course will be completely unnecessary, for everyone’s sake, including X!
Issue 2: The next issue relates to overseas travel. Regrettably, again, this is a matter that can and should be “resolvable” quite easily and relatively painlessly. But that is again not the case here.
In my view, following very regularly made Orders in other parenting matters, in any circumstance where it is proposed, by either parent, that one or either (or both) children travel overseas, no less than 30 days prior to the intended date of travel, the “travelling parent” shall provide to the “non-travelling parent” an itinerary for the proposed trip, together with a copy of the airline tickets for the children and the travelling parent.
Again to state the obvious: such a course as now determined will give the “non-travelling parent” ample time to bring any Application to challenge such a trip if, for any genuine reason, it should not proceed. If it needs to be noted again, each parent should think seriously about the consequences for all involved, is such a course is taken.
Issue 3: The third and final issue, with some ancillary matters dealt with even more briefly below, relates to the Mother seeking various “relief” in relation to “child support”, broadly interpreted. That relief canvasses either or all of the following: (a) that the parties enter a binding child support agreement (with a view to reducing ongoing child support Applications); (b) that the Father effectively be declared “vexatious” because of what the Mother says is his propensity to control and harass her by the use of review Applications for child support before the CSA; (c) reimbursement of a range of expenses paid for by the Mother, paid school fees in particular is a prominent matter, as are various health care costs which the Mother also maintains she has paid without any contribution by the Father; and (d) that outstanding child support arrears owed to the Mother be paid.
Two things should be observed at the outset in relation to these issues.
First, although there is no child support Application formally before the Court, under s.116(1) and (2) of the Child Support (Assessment Act) 1989 (Cth) (“the CSAA”), the Court is authorised to consider and deal with child support matters in the course of dealing with a parenting dispute. But the Court retains a discretion whether to hear and determine such matters. In the course of the hearing, the Court indicated that it was not disposed to deal with “child support” matters generally, and that the better course, in the Court’s view, was to seek review of child support matters through the CSA. In my view, notwithstanding that view, it will assist the parties immeasurably for the Court to deal with a few, discrete issues if for no other reason than reducing further the areas of dispute between them.
Secondly, by way of observation only, but a concerned and very interested observation nonetheless, in his Financial Statement, filed 5^th October 2021, the Father declared that his annual income (“total value of property owned by you”) was $51,341. In the same document, and in the same place (Part B), the Father further declared that he had superannuation of $408,837. The Father confirmed that he is “self-employed.” The Court may take judicial notice of the fact that, usually, self-employed persons have available to them a range of deductions and other tax incentives and entitlements that employed persons usually do not, particularly where, as is the case here, a corporate vehicle regarding employment is used. Just on the figures noted here, they rather tempt the question: “How can someone who earns just over $50,000 annually, accumulate superannuation of well over $400,000?”
In a slightly similar vein, on the basis of an abbreviated “costs notice” filed by the Father’s lawyers on 18^th October 2021, which showed costs of $48,047 and the Father having paid $18,282.00 toward those costs, noting that payment (past and future) comes (or will come) from the Father’s “funds/borrowings”, there is little or no information about from where the “funds” and or “borrowings” will come. Given the mutual claims of lack of financial disclosure, such an omission by the Father is significant.
As hinted at earlier in these reasons, in my view, a Binding Child Support Agreement would be a very sensible course if not an essential co-parenting “tool” for these parents. Its obvious benefit is that it would define completely, or should do so, what the respective responsibilities of the parties are. It should also obviate the need for any further Applications to the CSA, thereby saving everyone more time, energy and resources. To put it in blunt terms: it is a complete waste of everyone’s resources, including the CSA’s, to have repeated Applications to challenge assessments on such a regular basis as has been the case here. It is also critical to ensure that the parties have certainty and stability regarding child support issues in circumstances arising from the Mother’s significant health issue that will increasingly impact all manner of things, including her income-earning capacity. Such only makes (or will make if they continue) ongoing CSA Applications a form of control and oppression, which any Court would frown upon most severely.
In making any Orders pursuant to s.116, the Court is required to have regard to the matters set out in s.117, which include “justice and equity” considerations, and in making any Orders is also to consider them to be “otherwise proper.” In my clear view, it would aid the parties if the following matters were the subject of such an Agreement. They are relatively straight-forward on the evidence here, especially in circumstances where the Father is completely silent on them and otherwise does not challenge the Mother’s contentions regarding them. Subject to any other matters agreed to by the parties, the following issues should be the subject of the Binding Child Support Agreement: (a) arrears in child support; (b) division/reimbursement of the most recent medical and dental expenses for the children; (c) division/reimbursement of the most recent school fees in 2021; and (d) ongoing child support.
In relation to the last item, I note that the Mother contends that the CSA’s latest assessment only took into account the Father’s material supplied, and had no regard to the Mother’s previously filed material that led to an assessment that was more favourable to her. In the absence of cross examination, I am unable to comment on any of these matters, save to say that it would be extraordinary, and a clear ground for review by a Court, if the CSA made a determination of child support only on the basis of material from one party and (apparently) ignored material from the other party.
Therefore on this, and one other outstanding point (arrears of child support), the following procedural course, in my view, is appropriate and best in all of the circumstances (in terms of the language of s.117 of the CSAA, it is “otherwise proper”):
(a)Within 30 days, the parties are to retain independent legal advisers with a view to preparing a Binding Child Support Agreement;
(b)Also within 30 days, both parties are to obtain from the CSA a statement of any outstanding arrears of child support. The sum declared by the CSA is to be included in the Binding Child Support Agreement and the date by which it is to be paid (it should be paid within 30 days of the date of the Agreement); and
(c)Regarding monthly child support two matters require attention: (i) given the separation of the siblings and them living with each parent, an assessment needs to be made regarding whether there is the need for payment of any future child support; and (ii) subject to the CSA’s determination of any future child support (obviously including the amount of it and other relevant details), the existing amount of child support payable will be the average of the last three determinations of it by the CSA. It will continue to be paid until the CSA’s determination issues.
Finally, accepting that, absent a further hearing where the parties can attempt to bludgeon each other further into submission (metaphorically, of course, but still with severe emotional, psychological and financial impact), the following should be followed to finalise outstanding claims regarding health and other costs. In making the following course, I accept that the Mother’s case is that very significant sums have been paid by her for education and all other outgoings for the children without reimbursement by the Father. Again as an observation only, the detail of the Mother’s case in these respects is compelling, but ultimately, there is little that the Court can do in the present circumstances. Be that as it may, with a view to finalising the matter completely, the following is to be undertaken:
(a)regarding any sum paid by the Mother for the children regarding orthodontic or other dental fees, or other health care costs, since 30^th June 2021, upon receipt being provided by the Mother to the Father, within 30 days of the date of provision of that receipt(s), the Father shall reimburse the Mother one half of those costs;
(b)regarding the school fees of X in Canberra, prior to his move to live with his Father and attend school in Town B, assuming that the Father has a copy of the school fee note for X for the final term in Canberra, or the Mother providing confirmation of her payment of school fees, within 30 days, the Father is to pay (or reimburse) half of those fees.
The Court cannot, for the reasons already given, make any declaration or similar Order or comment about whether the Father is, or is not, a vexatious litigant. The requirements of such a declaration are quite onerous.
Further, should the matter not be able to be resolved finally on the basis of the limited Orders here stated by the Court, any future hearing would not be possible for quite some time into the future, perhaps 18 months or so.
Finally, as a notation only, in view of (a) each of the children now live with a different parent, (b) the long-term hostility between the parents, and (c) notwithstanding the agreement for equal shared parental responsibility for both children, in my view, it is more appropriate that the primary parent for each child shall have principal responsibility for major long-term issues regarding that child, subject to consulting in writing with the non-resident parent and properly taking account any views of that parent. Absent any other agreement in writing, the resident parent shall be responsible for all costs (including education) for the child in her or his care.

In my view, it is almost nonsensical for a non-resident parent potentially having the capacity to thwart – to any relevant degree (something of a specialty for these parents) – proper decision-making for the child who resides primarily with another parent. A simple, pragmatic approach seems to me to be the best course here. This is especially the case here given the ages of the children, X in particular, who will soon be making his own decisions in any event.
As already noted, I accept readily that the course taken by the Court does not address every one of the Mother’s very long list of grievances against the Father, perhaps best summarised by the Mother’s claims to have paid for all of the children’s educational costs for years, and the Father’s somewhat benign but coy response that he has paid what he has been assessed to pay. In many ways, as is often the case, if every year of paid but not compensated or reimbursed fees and costs was pursued, leaving the cost for both parties in doing so, it might be a very “interesting” result, for one or other, maybe even both, parents.
As stated now many times, my focus and purpose here has been to take an approach consistent with what I comprehend to be the best interests of the children in the widest possible sense that includes financial matters (e.g. under s.60CC(3)(ca) and (f) – both of which refer, in different ways, to parental obligation and capacity to maintain, provide, and care for, a child).
By virtue of the course I have outlined, and the Orders to be made in consequence, any and all other matters, including Applications, should be, and will be, dismissed. Hopefully, subject to the drafting and registering of the Binding Child Support Agreement, and the reimbursement to the Mother of a limited range of costs and fees noted, this should be the end of the litigation. May it be so – for everyone’s sake.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 22 April 2022

File number(s):	SYC 4764 of 2009
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	22 April 2022
Catchwords:	FAMILY LAW – PARENTING – long history of conflicted parenting and protracted litigation since 2009 between the parties – matter largely settled by consent at final hearing – discrete issues remaining relate to a restriction on the Father’s living location, overseas travel, various financial orders and child support – where the Mother was primary caregiver of both children until recently – where the siblings are separated and each of them now reside primarily with one parent – where the Mother found to have borne most of the financial costs relating to the children – the Father ordered to repay half of major costs relating to the children for the second half of 2021 – any future costs to be borne equally between the parties – sole parental responsibility ordered for each parent in respect to the child that now primarily resides with them – any relocation by the Father is to be advised to the mother with no less than 30 days’ notice – parties to retain legal advisers to prepare a binding child support agreement.
Legislation:	Child Support Assessment Act 1989 (Cth) s 116(1) & (2), 117 Family Law Act 1975 (Cth) s.60CC(3)(c), (d)
Cases cited:	Mulvany v Lane (2009) 41 Fam LR 418 Slater v Light (2011) 45 Fam LR 41 t
Division:	Division 2 Family Law
Number of paragraphs:	53
Date of last submission/s:	9 March 2022
Date of hearing:	18 and 19 October 2021
Place:	Canberra
Solicitor for the Applicant:	Self-Represented
Counsel for Respondent:	Mr O’Reilly
Solicitor for Respondent:	Newnhams Solicitors
Counsel for the Independent Children’s Lawyer:	Mr Stagg
Solicitor for the Independent Children’s Lawyer:	Legal Aid ACT

SYC4764/2009
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MASTERS Applicant
AND:	MR NEWTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	22 APRIL 2022