MONTAGUE & SANDERSON
[2011] FMCAfam 398
•18 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MONTAGUE & SANDERSON | [2011] FMCAfam 398 |
| CHILD SUPPORT – Departure Application – abandoned at hearing. FAMILY LAW – Children – parenting orders – parental responsibility – equal shared parental responsibility – where parties agree on equal shared parental responsibility – one child – girl aged 13 years attending boarding school. COSTS – Application for costs order – where application for departure order abandoned. |
| Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 117 Child Support (Assessment) Act 1989 (Cth), s.118 |
| Goode & Goode [2006] FamCA 1346; (2006) 35 Fam LR 422; FLC 93-286 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 |
| Applicant: | MS MONTAGUE |
| Respondent: | MR SANDERSON |
| File Number: | SYC 517 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 December 2010 |
| Date of Last Submission: | 10 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Mackenzie & Vardanega Solicitors |
ORDERS
All previous parenting orders are discharged.
The applicant mother and the respondent father are to have equal shared parental responsibility for the child of the marriage [X] SANDERSON-MONTAGUE born [in] 1997.
Each party is to have responsibility for making decisions about the day to day issues in relation to the care, welfare and development of the child [X] whilst she is in the care of that party.
The child [X] SANDERSON-MONTAGUE is to live with the mother.
For the purposes of the child’s secondary education, the child is to attend [F] Boarding School at [T] in the State of New South Wales unless the parties agree otherwise and the parties are to do al things and execute all documents necessary too give effect to this Order.
The child [X] is to spend time with the father as follows:
(a)During [F] school term on the following weekends:
(i) Saturday 26 February and Sunday 27 February 2011;
(ii) Saturday 19 March and Sunday 20 March 2011;
(iii) Saturday 30 April and Sunday 1 May 2011;
(iv) Saturday 21 May and Sunday 22 May 2011;
(v) Saturday 11 June and Sunday 12 June and on the public holiday Monday 13 June 2011;
(vi) Saturday 23 July and Sunday 24 July 2011;
(vii) Saturday 13 August and Sunday 14 August 2011;
(viii) Saturday 3 September and Sunday 4 September 2011;
(ix) Saturday 24 September and Sunday 25 September 2011;
(x) Saturday 15 October and Sunday 16 October 2011;
(xi) Saturday 5 November and Sunday 6 November 2011;
(xii) Saturday 26 November and Sunday 27 November 2011; and
(xiii) In 2012 and each year thereafter for the third weekend in every three 93) weekends, the first of such weekends being Saturday 4 February and Sunday 5 February 2012;
(b)During [F] school holidays between the following dates:
(i) Monday 18 April to Sunday 24 April 2011;
(ii) Thursday 30 June to Thursday 7 July 2011;
(iii) Saturday 24 September to Thursday 29 September 2011;
(iv) Thursday 15 December to Thursday 22 December 2011;
(v) For the second week of the school holidays in 2012 and each even numbered year thereafter; and
(vi) For the first week of the school holidays in 2013 and each odd numbered year thereafter;
(c)On the weekend closest to [X]’s birthday in 2011 and each alternate year thereafter;
(d)Over Christmas 2011 from 22 December to 29 December 2011 and each alternate year thereafter.
On each of the weekends when the father is to spend time with the child in accordance with these Orders the father is to attend at
[F] School to collect [X] and return her to school in accordance with the requirements of the [F] School including but not limited to the child’s sporting and extra-curricular commitments.
In respect of any weekend upon which the father is to spend time with the child being a closed weekend as prescribed by [F] School the father may spend either the weekend before the closed weekend or the weekend after the closed weekend with the child provided that he notifies the mother at least fourteen (14) days prior to the proposed weekend of his intention to do so.
THE COURT NOTES:
A. That the following weekends are “closed” weekends in the [F] School calendar:
(a)Saturday 30 April and Sunday 1 May 2011;
(b)Saturday 23 July and Sunday 24 July 2011; and
(c)Saturday 15 October and Sunday 16 October 2011.
B. That [F] School requires that students spend only a limited number of nights staying outside school accommodation during the school term and such nights are called “exeat nights”.
The child will spend her exeat nights in each school year as follows:
(a)Four (4) exeat nights with the father;
(b) Four (4 ) exeat nights with the mother; and
(c) Four (4) independent exeat nights for [X] to spend with a school colleague.
The father must obtain leave from his employment during the school holiday periods when he is to spend time with [X] and he is to supervise [X] at all times during those school holiday periods.
For the purposes of changeover when [X] is to spend school holiday time with the father the mother is to deliver the child to the father at the [B] Park at [M] at 4.00 pm on the first day of the holiday period and the father is to return the child to the mother at the said [B] Park at
4.00 pm on the last day of the holiday period unless otherwise agreed between the parties.
The father may telephone [X] during school term at any reasonable time in accordance with [F] School rules for private telephone calls.
The father is to provide to the mother a copy of his work roster within seven (7) days of his receiving that roster and otherwise must notify the mother within seven (7) days if he is unable to spend time with the child in accordance with these Orders.
Both parties must:
(a)use their best endeavours to ensure that [X] completes all homework, school assignments and school tasks whilst she is in their care;
(b)notify each other immediately of any significant illness or medical condition or injury that would involve the child receiving medical treatment;
(c)use their best endeavours to provide [X] with additional reasonable time with the other parent for special family occasions provided that such time does not unnecessarily conflict with the child’s commitments at [F];
(d)provide to each other and keep each other informed of their emergency contact details including their:
(i) residential address;
(ii) home telephone number; and
(iii) mobile telephone number;
(e)ensure that [X] calls the other parent when she is in their care on at least two (2) days each week between 6.00 pm and 7.00 pm; and
(f)Notify the other promptly by direct telephone call to confirm that they have collected [X] from or returned her to [F] on all times as set out by these orders.
When either party intends to travel with [X] away from the [omitted] areas overnight except when transporting the child to [F] School then that party must provide to the other a contact telephone number and an address where the child will be staying overnight no less that seven (7) days in advance of the intended travel.
Each party shall be entitled to copies of [X]’s school reports and all other information from [F] School to do with her education at their own cost.
The application for an order for a departure from the administrative assessment of child support payable by the father for the child is dismissed.
The father is to pay the mother’s costs of the application for departure from the administrative assessment of child support as assessed or agreed.
NOTATION:
THE COURT NOTES THAT it is the intention of the Applicant Mother and the Respondent Father that:
The mother enrol [X] at [F] Boarding School and that [X] attend [F] Boarding School only in the circumstances that the Applicant Mother be solely responsible for and pay all (100%) of the school fees and associated costs of [X] attending [F] Boarding School (or any other boarding school the parents agree that [X] attend), including tuition fees, boarding school fees, school uniforms, school books and materials, school excursions and extra curricular activities and the Father have no financial responsibility for the costs of [X] attending [F] Boarding School, other than his travel and associated costs of [X] spending time with him pursuant to this Order whilst she attends boarding school.
IT IS NOTED that publication of this judgment under the pseudonym Montague & Sanderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 517 of 2010
| MS MONTAGUE |
Applicant
And
| MR SANDERSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a girl named [X] who is 13 years old. She seeks to discharge earlier parenting orders made in the Family Court of Australia at Melbourne and in the Local Court of New South Wales at [omitted].
The father has filed a response in which he seeks to discharge the earlier parenting orders. He also sought, but has now abandoned, a Child Support Departure Order.
Orders Sought
The orders sought by the mother are set out in her case outline tendered on the first day of the hearing. They are not dissimilar to the orders sought in the mother’s original application.
The mother seeks these orders, which I have summarised:
a)That the Orders made by the Family Court of Australia at Melbourne and the Local Court at Hay be discharged;
b)That the parties have equal shared parental responsibility for the child [X];
c)That [X] should attend the [F] Boarding School at [T], New South Wales;
d)That [X] should live with the mother;
e)That [X] should spend time with the father on various weekends and at defined times in the school holidays;
f)Changeover at the “[B] Park” at [M];
g)Telephone communication during the school term in accordance with the rules at [F];
h)Time with [X] on her birthday;
i)Arrangements for Christmas;
j)Non-exeat long weekends
k)The father to provide a copy of his work roster to the mother within seven days of receiving it; and
l)That the father’s application for a departure order be dismissed.
The father seeks orders as set out in a Minute of Orders filed in Court on the morning of the hearing. They are (summarised):
a)That the Orders made by the Family Court of Australia at Melbourne on 12th June 2003 and the Orders made by the Local Court of New South Wales at [omitted] on 6th December 2004 be discharged:
b)That the mother and father have equal shared parental responsibility for [X];
c)That the parties have joint responsibility for making decisions about major long term issues in relation to [X], including:
i)Health;
ii)Education;
iii)Secondary School;
iv)Religion.
d)Until the completion of her secondary education [X] is to attend [F] Boarding School at the mother’s expense and whilst she is at [F] the mother will be solely responsible for meeting all of [X]’s expenses at the school.
e)That [X] spends time with the father, subject to her school’s leave and overnight leave (exeats) requirements:
i)During school terms, except for the Easter long weekend in each even numbered year, commencing on the first weekend following the first Monday of each school term, each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday extending to cover public holidays and pupil free days if they fall on the Friday before or the Monday after the weekend; and
ii)Except for the Easter long weekend in each even numbered year, for the first half of each school holiday period commencing at the end of the school term, commencing in 2012; and
iii)For the second half of each school holiday period commencing at the end of the school term in each odd numbered year commencing in 2011; and
iv)For the Easter long weekend in 2011 and each alternate odd numbered year thereafter; and
v)From 22 December 2010 to 13 January 2011 for the school holiday period for the end of 2010 school vacation period.
f)[X] should spend time with the mother:
i)During school terms, on weekends that the child is not spending time with the father;
ii)For the second half of each of the school holiday periods commencing at the end of the school term in each even numbered year commencing in 2012;
iii)Except for the Easter long weekend in each odd numbered year for the first half of the school holiday periods commencing at the end of the school term in each odd numbered year commencing in 2011;
iv)For the Easter long weekend in 2012 and each alternate even numbered year thereafter;
v)From the break up of school in December 2010 until 22 December 2010 and from 13 January 2011 until the end of the school vacation in January 2011.
g)Otherwise [X] would live with the mother.
h)Whilst [X] attends [F] she would spend an equal number of nights of overnight leave with each parent and she would alternate spending “non-exeat” weekends with each parent, who would alternate forfeiting any exeats used or taken by [X].
i)Telephone communication with [X] confined to those times and means permitted by [F].
j)[X] to be at liberty to telephone each parent that she is not living with or spending time with at any reasonable time.
k)[X] to speak to each parent by telephone twice a week and the parent with whom [X] is spending time with or living with at the time to facilitate telephone calls:
i)On [X]’s birthday
ii)On the father’s birthday
iii)On Father’s Day
iv)On the Mother’s birthday
v)On Mother’s Day
vi)Each Wednesday and Saturday.
l)Changeover at the “[B] Park” at [M]
m)The parent with whom [X] is to spend time during school terms is to collect the child from school and return her to school
n)The parent with whom [X] spends time is to notify the other parent when he or she collects [X] from school and returns her to school.
o)Arrangements for Mother’s Day
p)Arrangements for Father’s Day
q)The parties are to use their best endeavours to see that [X] does her homework
r)The parties to notify each other of any significant illness, medical condition or injury requiring medical intervention.
s)The parties use their best endeavours to provide [X] with additional reasonable times for special occasions, such as birthdays, Mother’s Day and Father’s Day
t)The parties to keep each other informed about emergency contact details including:
i)residential address
ii)home telephone number
iii)mobile telephone number
u)The parties should advise each other if they have any intention to travel overnight with the child from the [omitted] areas and provide contact telephone numbers and addresses.
v)The parties must authorise the school to release all information about [X]’s education or school related events to the other parent.
w)Each parent to be permitted to attend [X]’s school functions
x)Other arrangements as agreed between the parents.
Areas of Agreement
The parties agree about many things, including:
a)Discharging the earlier Orders of the Family Court and the Local Court;
b)Equal shared parental responsibility;
c)[X] is to attend [F] Boarding School until she completes her secondary education;
d)[X] is to live with the mother;
e)[X] is to spend time with the father on weekends and during school holidays;
f)Changeover is to be at the “[B] Park”;
g)Telephone communication with the child is to be in accordance with the school rules;
h)The parties are to see that the child does her homework;
i)The parties will notify each other of any significant illness, medical condition or injury that requires medical attention;
j)The parties will endeavour to provide [X] with additional reasonable time for special occasions with the other parent;
k)The parties will provide each other with their emergency contact details;
l)The parties will see that [X] telephones the other parent at least twice a week;
m)The parties will inform each other if they intend to take the child away from the [omitted] areas overnight and provide a contact telephone number and an address;
n)The parties will be entitled to all information from [F] about [X]’s education and school related activities; and
o)Each party must notify the other when they have collected [X] from school and returned her to school.
Issues
One area of contention was whether or not there should be an order for departure from administrative assessment of child support. However, that application by the father was abandoned on the morning of the hearing.
This left the court to decide on appropriate parenting orders. As can be seen, the parties have been in substantial agreement in principle and the differences between them are more matters of detail.
The mother submits that the issues in dispute are:
· Both parties’ approach to defining the father’s time with [X] is different although the amount of time and the pattern of time are essentially agreed.
· The father asserts that Orders should be made contemplating [X]’s possible change of school in the future. Even though there is no plan proposed that [X] change school now or at any time between now and the conclusion of her higher school certificate education, the father expects that Orders be made covering a variety of possibilities that may never occur.
· The father wishes to define the time the mother should spend with [X].
· The parties have a different approach to defining orders with respect to the special occasions such as Father’s Day, Mother’s Day and Birthdays.
· The mother proposes a specific Order in relation to changeover arrangements when [X] is not as school. The father’s response is silent on that issue.
The father takes issue with what he sees as the mother’s overly-prescriptive view. He considers that the mother is trying to control his time with the child. He wants a more flexible arrangement.
Background
The mother was born [in] 1975. The father was born [in] 1971.
The parties were married [in] 1996. There is one child of the marriage, [X] Sanderson-Montague, who was born [in] 1997.
The parties separated in July 1999 and were divorced on 29th January 2001. [X] remained living with her mother.
The mother commenced a relationship with Mr M, her present husband, in 2001. They have two children, [Y], who was born [in] 2005 and is aged 5 years, and [Z], who was born [in] 2007, and who is therefore aged 3 years.
There were parenting orders made by consent in the Family Court of Australia at Melbourne, sitting at Albury, on 12th June 2003. These orders were varied by consent at the Local Court of New South Wales at [omitted] on 6th December 2004.
In 2006 the father commenced work at [K] in Western Australia, commuting every three weeks.
On [date omitted] 2008 the father married Ms F, who was born [in] 1976.
There were negotiations between the parties about the mother’s wish for [X] to attend [F] Boarding School at [T] between February 2008 and December 2009. The father did not agree to assist with paying boarding school fees. However, the mother enrolled the child at [F] in October 2009, notwithstanding the father’s refusal to be responsible for the fees. He did, however, provide his contact details to the school.
The mother had changed the child’s surname from “Sanderson” to “Sanderson-Montague” in February 2009.
The child commenced attending [F] at the beginning of the school term on 28th January 2010.
The following day, 29th January 2010, the mother commenced proceedings in this Court seeking parenting orders. The father filed a response on 19th March 2010, seeking parenting orders and a Child Support Departure Order.
On 22nd March 2010 the application was first listed before the Court. I directed that the parties should attend a Child Dispute Conference under the provisions of s.11F of the Family Law Act. The parties and Mr M attended a conference on 21st April 2010.
The Child Dispute Conference was reportable and the Family Consultant, in the Family Consultant Memorandum to the Court, reported that the parties had reached agreement that [X] would live with the mother and spend time with the father. They agreed that the child would attend [F] Boarding School on the understanding that the mother would pay the fees and the father would pay child support.
The Family Consultant reported that the parties entered into agreement about sharing the “exeats” (weekends when the child was allowed to stay away from the school overnight) and if the weekend that the father was due to spend time with the child was a “closed” weekend then the father would spend time with her either on the weekend before or after the “closed” weekend.
The parties reached agreement about school holidays, changeover, Christmas holidays, Easter (with the child spending Easter 2011 and odd numbered years thereafter with the father), Father’s Day and Mother’s Day.
On 3rd June 2010 the application was listed for final hearing on
10th December 2010.
On [date omitted] July the child [E] was born to the father and his wife.
The father suffered a back injury at work in October 2010 and has been off work since then.
On 26th November 2010 the mother filed an Amended Application, in which she sought amended parenting orders. She also sought that the father’s application for a Child Support Departure Order be dismissed but, in the event that the father’s application for a Child Support Departure Order was not dismissed, she sought a Child Support Departure Order.
The application was heard by the Court on 10th December 2010.
Evidence and Submissions
The case proceeded only on the issue of the parenting orders sought by the parties. Counsel for the respondent father, Mr Anderson, informed the court on the morning of the hearing that the father abandoned the application for a departure from administrative assessment of child support for the child. A document entitled “Minutes Of Final Order[1] Sought By Respondent Father” was subsequently handed up in Court.
[1] Sic
The mother relied on the following documents:
a)Her Amended Initiating Application filed on 26th November 2010; and
b)Her affidavit sworn 19th November 2010 and also filed on 26th November 2010.
The father relied on the following:
a)His affidavit affirmed 16th November 2010; and
b)The affidavit of his wife, Ms F, sworn on 16th November 2010.
The mother and father gave oral evidence.
The mother deposed that she and the father had agreed that [X] would be enrolled at [F]. She annexed to her affidavit a copy of a letter dated 22 December 2009 from the father’s solicitors to the solicitors then acting for the mother, Messrs Commins Hendriks of Wagga, saying:
We can confirm that our client has no objection to [X] attending the boarding school proposed in those Minutes and, rather than sign the enrolment form you have provided, will forward his details directly to the school via email, as has been recommended by the Registrar, [name omitted].[2]
[2] Affidavit of Ms Montague 19.11.2010 Annexure “A”
Part of the Annexure included print-outs of two emails from the father to the mother dated 5 September 2008 and 1 January 2010.
In the email of 5 September 2008 the father refers to the proposed change of [X]’s name from “Sanderson” to “Sanderson-Montague” in order to assist her being accepted into boarding school, saying:
I do realize that the name change may help her into enrolling into some schools but I’m a bit concerned that if the school thinks that Mr M is the father and I’m not on any forms within the school system how do I go about being invited to [X]’s school events in the future of me and Ms F are in Sydney how I go about picking her up from school for a weekend…
Don’t get me wrong I’m all for [X] going to a Boarding school but as you can (imagine) as her Father I do have concerns.[3]
[3] Affidavit of Ms Montague 19.11.2010 Annexure “A”
In his email of 1 January 2010 the father said:
As I have said a thousand times and I’ll say it again we are and never have been against [X] going to boarding school.[4]
[4] Ibid
The mother deposed that the father agreed with Mr M in a conversation in about February 2009 that her name could be changed to Sanderson-Montague to help her get into boarding school and he signed the necessary documents the day after that conversation.[5]
[5] Ibid at paragraph [15]
The mother deposed that it was her belief that the father had made his own inquiries of [F] and satisfied himself that [F] was the best school for her. However, she raised concerns in her affidavit about the father not adequately communicating with her about his intentions regarding the child and spending time with her and his emergency contact details. She explained that she was seeking orders that defined the exact dates that the father would spend with [X] during school terms and school holidays.
The mother further deposed that the travelling time from [H], where she resides on a rural property, to [F] at [T], is about 6 hours one way. The travelling time form the father’s residence in [G] to the school is about 5 hours one way. She explained that she sought defined orders to avoid the difficulty of both parents being of the opinion that [X] was to spend time with them and both travelling a long distance to collect her.
The mother raised concerns about the unsatisfactory nature of the father’s communication with her about his work circumstances or work roster. She stated that:
In the absence of clear communication form the father as to his working circumstances and availability, it is difficult to make arrangements as to time that [X] is to spend with the Father over school holidays.[6]
[6] Ibid at [26]
The mother also deposed:
Due to the lack of communication from the Father, it has been extremely difficult on occasions to make arrangements and organise certain events, such as [X]’s surgery, flights, accommodation and school holiday access for him, and so on. I do not have a contact phone number for the Father for when he is working at [omitted] or working at [G].[7]
[7] Affidavit of Ms Montague 19.11.2010 at [28]
The mother goes on to state:
Further, it is not appropriate that the Father use [X] as a means of communication to me (as she has been employed in the past), as it is highly unfair to place the child in a situation of relaying messages between the father and I. If there are errors of communication then I say and verily believe that [X] will feel that she is to blame. [X] should not be put in that position.[8]
[8] Ibid at [29]
The balance of the mother’s affidavit refers to the mother’s account of [X]’s statements to her about her activities at [F] and financial matters, which were no longer relevant.
The mother gave oral evidence in chief to deal with her approach to the father’s new proposal for parenting arrangements, which she had received about an hour previously. The mother said that to go to [F] from [H] and back takes four days. She said that [H] is one and a half hours from [G] and is a 6 hour drive to [F]. She travels to her grandmother’s place at [omitted] and stays overnight. Then she goes to the school. She said that it takes four days, two of which are travelling.
The mother said that the plans had been made because the father was working (in Western Australia) and working a roster. Now he seeks to have half the school holidays, which makes it difficult for her.
The mother said that if [X] did not go to [F] she would have gone to [H] School, but they wanted the best possible education for her.
In cross-examination by Mr Anderson of counsel for the father, the mother said that the father was seeking every second weekend with [X] instead of every third weekend, which were the current orders. She said she only found out about the father’s new proposal an hour earlier. She said that she was more then happy for the father to have half the school holidays with [X] but she and her present husband had made plans for family holidays “well in advance”. She said:
“This has come upon us fairly suddenly”.
The mother went on to say that she had no difficulty with [X] spending time with the father’s new wife. She said that [X] had a close relationship with her father and Ms F.
The mother went on to say words to the effect:
“We have always said that we will pay school fees as long as he pays the child support. (The father) said he would always pay the child support and not try to reduce the child support as long as (the mother) paid the [F] fees. I ma not asking for an increase in child support.”[9]
[9] Verbatim notes taken by the Bench
The mother also told the father’s counsel in cross-examination (words to the effect of):
“I don’t want to control the child’s arrangements with her father. I just need some clarity and conformation of dates. It’s important for him to have certainty of dates.”[10]
[10] Verbatim notes taken by the Bench
The father deposed in his affidavit of 16th November 2010 that he works as a [omitted] at [K] in Western Australia. He works 14 day shifts and has 7 days off, which always includes a weekend. Thus, he has a long weekend off every third weekend. If he arrives back late in [G] he would like his wife Ms F to be able to collect [X] when she is spending time with him under the orders.
The father injured his back at work in mid October and has been off on workers compensation since then. He deposed that since separation [X] had always spent every third weekend with him, to fit in with his work schedule.
The father deposed that it was the mother’s decision to send [X] to boarding school but he did not object “as long as [Ms Montague] covered the cost of it and it did not affect [X]’s and my time together”.[11]
[11] Affidavit of Mr Sanderson 16.11.2010 at paragraph [24]
The father also deposed that since [X] commenced at [F] he had availed himself of every opportunity to spend time with [X]. He has incurred significant costs in travelling to [T] and staying in that area.
He expressed a difficulty in dealing with the mother about dates:
I will find it very uncomfortable to sit down with [Ms Montague] every year to discuss dates in advance when it has proven to be unnecessary. It will be an additional opportunity I feel for
[Ms Montague] to manipulate and control my life and [X]’s,
[Ms Montague] having usually dictated since separation when I can have [X]…I also want to be able to choose closer to the time which weekend I will enjoy time with [X] overnight (i.e. for an Exeat).[12]
[12] Ibid at [40]
The father also expressed concern about finances in that his current wife had only just started back working one or two days a week after having the baby. He has also been told by his doctor that he may not be able to return to doing the type of heavy work that he has been doing and he may have to change his career. He stated:
I may not be able to command the same income form other kinds of work I would then be suitable for.[13]
[13] Ibid at [49]
In cross examination by the mother’s solicitor, Mr Frakes, the father said that he sought as many nights as possible with [X] in his care so as not to affect the rate of child support he has to pay. He also said that he did not know when he would be well enough to go back to full duties. He was not currently [work omitted].
The father also said that if he was away at a time when the orders provided that he would spend time with [X] he would want his wife
Ms F to be able to do so.
The fathers’ current wife, Ms F, was not required for cross-examination
Mr Frakes told the Court that the mother needed to plan the arrangements with the child, because her arrangements were dictated by the school.
Mr Frakes also said that the mother sought an order for costs in relation to the Child Support Departure Order since the father had abandoned that claim at the last minute.
However, Mr Frakes told the Court that the mother agreed with the Notation proposed by the father in his Minutes of Final Orders Sought.
Mr Anderson for the father opposed the costs order sought by the mother because it was not necessary for the departure application to proceed because of what the parties said about the payment of the costs of the child attending [F].
The Relevant Law
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) (which are the primary considerations) and 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters. I will refer specifically to those that are relevant.
It is provided by subsection 61C(1) of the act that each of the parents of a child who is not 18 has parental responsibility for the child. The term “parental responsibility” is defined by section 61B of the Act:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
When making a parenting order, the court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child for his or her[14] parents to have equal shared parental responsibility for the child (see Goode & Goode[15].
[14] In this case, “her” parents
[15] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)family violence.
Again, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for her (see s.61DA(4)).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider:
a)whether the child spending equal time with each parent would be in her best interests; and
b)whether such an arrangement would be reasonably practicable.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of the child’s parents would be in her best interests; and
b)whether it would be reasonably practicable.
The term “substantial and significant time” is defined by subsection 65DAA(3) of the Act. It includes time spent with a parent both on days that fall on weekends and holidays and those that do not. Where a child is at boarding school, as is the case here, it is difficult for either parent to spend time with the child in such a way as would that parent to be involved in the child’s daily routine.
However, the section also envisages the time spent by the parent with the child being such as to allow the parent to be involved in occasions and events that are of particular significance to the child (see s.65DAA(3)b)) and occasions and events that are of special significance to the parent (see s.65DAA(3)(c)).
When deciding whether equal time or substantial and significant time would be reasonably practicable, the court must have regard to the matters in subsection 65DAA(5). They are:
a)How far apart the parents live from each other;
b)Their current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent;
c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing the arrangement;
d)The impact that the arrangement would have on the child; and
e)Any other matter that the Court considers relevant.
I have considered all of those matters and I will refer specifically to those that I consider to be relevant.
When dealing with applications for costs, the Court must bear in mind the requirements of section 117 of the Act, which provides that each party to proceedings under the Act shall bear his or her own costs, subject to the requirements of subsection (2). If the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), and (5) and the applicable Rules of Court, make such order as to costs as it considers just.
Conclusions
There is no issue between the parties that that the Court should make an order that they should have equal shared parental responsibility for [X]. Bearing in mind the wide scope of the term “parental responsibility” contained in section 61B the Act, I do not believe that there is a need to make an order in the specific terms as proposed by the father in paragraph 3 of his Minute of Orders Sought.
There is no evidence of abuse or family violence that would establish reasonable grounds for the Court to find that the presumption does not apply or has been rebutted that it is in the child’s best interest for her parents to have equal shared parental responsibility.
I propose to order that the parents are to have equal shared parental responsibility for [X].
The best interests of the child [X] are the paramount consideration in this case.
There is evidence that satisfies the Court that it is in the best interests of the child that she should have a meaningful relationship with each of her parents. There is no suggestion that she does not have such a relationship. Her relationship with each parent is, in my view, significant and important (see Mazorski & Albright[16].
[16] [2007] FamCA 520; (2007) 37 Fam LR 518
There is no evidence of any risk of physical or psychological harm to the child in either household.
The child [X] is 13 years old, having been born [in] 1997. She will attain the age of 14 at the beginning of July. She commenced High School in 2010. Her views should be given some weight. Both parents concede that she is enjoying her time at [F] and wants to stay there.[17]
[17] Affidavit of Ms Montague 19.11.2010 at [31]-[33]
[X] has a strong bond with each of her parents. She appears to have a positive relationship with her mother’s husband, Mr M, and her father’s wife, Ms F. The mother said in cross-examination that she had no difficulty with [X] spending time with the father’s new wife. She conceded that [X] has a close relationship with her father and Ms F.
[X] has two half brothers, [Y] and [Z], and she has more recently acquired a half sister, [E].
Despite the rather negative views expressed by the father, I am satisfied that both parents have the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the other parent. The mother gave oral evidence that she was more than happy for the child to spend half the school holidays with her father.
The child’s circumstances have changed, in that she now attends boarding school in [T], a long way away from the homes of both of her parents, who live in [G] and [H]. She clearly enjoys the school and wishes to stay there. However, this has had an effect on both of her parents, as they have to share the relatively limited free time that [X] has out of school during the school term. The travel is lengthy and the father has expressed concern that it will be more of a financial burden on him if his income drops because of his work injury.
Because the child is at boarding school in [T], there is a practical difficulty and expense for both parents to spend time with her.
The parties have the capacity to provide for [X]’s physical, emotional and intellectual needs. The mother’s solicitor has submitted that the father has placed his own needs and convenience before the needs of the child, and has disregarded her desire to attend [F], but this seems to be rather an unfair criticism. The father accepts that [X] wants to be at [F] and is prepared to accommodate that, provided that the mother bears the costs, but has expressed some concern about the expense to him. He has only recently become a father again and his wife has only fairly recently recommenced work, so his income is rather stretched.
The Court must consider the parents’ attitude to the child and to the responsibilities of parenthood. It was always the mother’s wish that [X] went to boarding school, preferably [F], because she wants the best possible education for her. As a result, she has been the driving force and the father has gone along with the idea. He was concerned about the expense and about the fact that [X] would be away from the area where he lives. The nature of his work at [omitted] in Western Australia has had an effect on his ability to fit in with the schedule imposed by the school, but he has taken the opportunity to spend time with the child as much as he can.
I am not persuaded that the mother’s criticism, expressed in her solicitor’s written submission, is accurate. It is not entirely fair to say that the father has been more concerned with minimising his child support obligations than with the child’s best interests.
There are no family violence issues and no family violence orders. The child is not an Aboriginal or Torres Strait Island child.
The Court must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. The mother wants certainty and the father wants flexibility. In my view, orders providing some certainty, however irksome that may be to the father, are less likely to lead to further litigation.
That said, it is difficult to see why it was considered necessary by the father to commence and persist with the application for a Child Support Departure Order, when it appears to have always been the case that the mother and her husband were prepared to meet the expense of the child attending at [F]. The application for a departure order was only abandoned on the morning of the final hearing. It appears to have been an obstacle to negotiations for mutually satisfactory parenting orders.
There are no other relevant facts or circumstances.
This is a case where the parents should have equal shared parental responsibility for the child. However, the very geography of the arrangements and the fact that child is at boarding school means that equal time with each parent is not reasonably practicable. The parents live 150 or so kilometres from each other, in [H] and [G]. The child is at [F], in [T], some 5 hours by car from [G] and 6 hours from [H].
The fact that the child is at boarding school so far away from each parent militates against substantial and significant time with either parent, because it is not reasonably practicable for either one to be involved in the child’s daily routine during the school term. Arrangements can be made for some occasions of significance, but the school’s own requirements may mean that neither parent will be able to spend time with the child on such occasions as birthdays.
Nevertheless, the Orders that I propose to make, which are largely in line with the mother’s more prescriptive proposal, should ensure that each parent has substantial time with the child.
The mother has applied for an order for costs in respect of the father’s child support application. The father applied for a Child Support Departure Order in his Reponses filed on 19th March 2010. The parties attended a Child Dispute Conference on 21st April and discussed the very issue of [X] attending [F], school fees and child support.
The Family Consultant reported:
· The child will attend [F] Boarding School
· The mother is to pay the school fees with the understanding that the father is to pay child support.[18]
[18] Family Consultant Memorandum to Court
If that was what was agreed by the parties at the Child Dispute Conference on 21st April, why did the father persist with the Child Support Departure Application until the very morning of the hearing on 10th December? It is hard to see what the point was, unless it was for some tactical reason.
One of the matters relevant to a costs order is that set out in s.117(2A)(c):
the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.
In my view, the application for a departure from administrative assessment of child support was no longer necessary from immediately after the Child Dispute Conference in April, and it was an unnecessary distraction up until the date of final hearing. It was abandoned on the morning of the hearing; in my view, it should have been abandoned months before.
I am satisfied that there should be an order for costs in favour of the mother in respect of the application for departure from administrative assessment of child support.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 April 2011
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