NABATI & NABATI

[2019] FCCA 3368

FEDERAL CIRCUIT COURT OF AUSTRALIA

NABATI & NABATI [2019] FCCA 3368

Catchwords:
FAMILY LAW – Spousal Maintenance – Child Support – Parenting – the husband did not attend for the Hearing – lack of discovery by the husband – whether the husband has capacity to pay spousal maintenance – whether the wife is unable to support herself – husband paying for outgoings on the family home and other expenses – spousal maintenance ordered on an interim basis – whether there are special circumstances to depart from the administrative assessment of child support – found that no special circumstances exist – application for departure order dismissed – interim parenting orders made consistent with family report recommendations.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, 75

Child Support (Assessment) Act 1989 (Cth), ss.116, 117

Cases cited:

Beklar v Beklar [2013] FamCA 327

Dwyer v McGuire (1993) FLC 92-420

In the Marriage of Bevan (1993) 120 FLR 283

In the Marriage of Bolton (1992) 107 FLR 131

In the Marriage of Gyselman (1991) 103 FLR 156
In the Marriage of Weir (1992) 110 FLR 403

Applicant: MR NABATI

Respondent: MS NABATI

File Number: MLC 4892 of 2019

Judgment of: Judge Blake

Hearing date: 30 October 2019

Date of Last Submission: 30 October 2019

Delivered at: Melbourne

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Meehan

Solicitors for the Applicant: Susan Snyder

Counsel for the Respondent: Mr Salamanca

Solicitors for the Respondent: KCL Law

ORDERS

1. The matter be adjourned to the Duty List on 30 January 2020 at 9:45am for Directions.

2. At the election of the husband, by written notice to the wife’s solicitors no less than 14 days prior to the commencement of contact as set out in sub-paragraphs (2)(a) to (b) herein and until further Order, the husband spend time with X born on … 2016 (“X”) for 3 hours per week on two occasions, supervised by a professional supervisor, at the husband’s costs, as follows:

   (a)Each Monday from 2pm to 5pm;

   (b)Each Thursday from 2pm to 5pm.

3. Changeover is to occur at the A Play Centre at E Street, Suburb F, with the wife to deliver X to the Play Centre at the commencement of time and to collect X at the conclusion of time.

4. The husband may contact X by Skype or Facetime each Tuesday at 6pm with the husband to facilitate and initiate the call, and the wife to make X available for the contact.

5. The husband be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for any legal medication prescribed by a registered medical practitioner and taken and/or used by the husband in accordance with such prescription.

6. The contact referred to in Order 2 and 4 herein be subject to the husband providing to the solicitors for the wife monthly drug blood or urine tests with the first drug test result to be provided to the solicitors for the wife each month following the making of these Orders, and that he further provide test results of quarterly hair follicle tests with the first testing to take place on the 3rd month following the making of these Orders and quarterly thereafter. The husband continue to undertake the drug testing as referred to in this paragraph for a period of no less than 12 months from the date of these Orders, or until further Order.

7. For the purposes of the drug tests, the husband attend upon pathology/screening clinic appointed by the wife and the husband pay the costs of such screenings.

8. In the event that the husband tests positive, then contact as set out in Orders 2 and 4 herein is suspended for the period of the positive test results.

9. The husband be restrained from discussing illness and medical issues with X.

10. The husband and the wife subscribe to the “My Family Wizard” App and communicate on this online portal in relation to:

    (a)Sharing information about, or discussing issues relating to X;

    (b)Organising parenting arrangements in respect of X;

    (c)Uploading and storing documents relating to X.

11. The husband and wife attend a post separation counselling course and provide certificates of completion to the other party via their legal representatives within 7 days of receiving the certificate of completion of such course.

12. Paragraphs 5(a) to 5(g) of the Orders made by consent on 26 August 2019 remain in full force and effect.

13. Pursuant to section 74 of the Family Law Act 1975, the husband pay to the wife, by way of spousal maintenance until further Order, the sum of $400 per week, by way of direct deposit into the wife’s nominated bank account.

14. The wife’s application for a departure from any administrative assessment of child support be dismissed.

15. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4892 of 2019

MR NABATI

Applicant

And

MS NABATI

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Respondent wife.  She seeks an order for interim spousal maintenance in the sum of $750 per week.  She also seeks an order that there be a departure from the administrative assessment of child support under the Child Support (Assessment) Act 1989 (‘CS Act’).

2. Since the matter was last before me, the parties have obtained a Family Report in relation to the care of their child of the relationship, X.  X is three years old.  The wife supports a change to the present parenting arrangements to make them consistent with the recommendations of the Family Report.

3. For the reasons that follow, I have decided to allow in part the wife’s application for spousal maintenance, dismiss the application for a departure order from the administrative assessment of child support and make interim parenting orders consistent with the Family Report and the wife’s proposal.

Background

1. The proceedings before the Court were commenced by the husband in relation to parenting matters.  The Response filed by the wife sought both interim and final orders with respect to both property and parenting matters.

2. The matter came before me in the duty list on 26 August 2019.  Both parties were represented.  At that time, Orders were made by consent which relevantly provided as follows:

   a)Pending the adjourned date, the husband be responsible for, pay and indemnify the wife with respect to the following expenses:

   i)The mortgage to Perpetual Ltd regarding the property situate at and known as B Street, Suburb C (‘the B Street, Suburb C property’).

   ii)All Council, water rates, water usage, Owners Corporation fees and insurances on the B Street, Suburb C property.

   iii)The utility services, including electricity and internet services connected to the B Street, Suburb C property.

   iv)The wife’s motor vehicle registration accounts and comprehensive motor vehicle accounts as and when they fall due.

   v)The wife’s mobile telephone plan at no less than the current level of cover.

   vi)The private health insurance premiums for the wife at no less than the current level of cover.

   vii)The payment of the expenses referred to in sub-paragraphs 5(a) to (f) of the Orders made on 26 August 2019 are not to be credited against the husband’s child support liability.

3. The wife currently lives at the B Street, Suburb C property with X. The husband currently lives with his wife.

4. In addition to the above Order, Orders were also made as follows:

   a)on or before 23 September 2019, the husband provide discovery of documents sought and outlined by the wife in paragraphs 19(a) to (r) of her Response;

   b)within 28 days the husband provide documentary evidence of the use of the funds withdrawn by him.  This related to an amount of $70,000 withdrawn by the husband from a Macquarie Bank account on 9 April 2019, and an amount of $10,000 withdrawn by the husband from another Macquarie Bank account on 3 April 2019;

   c)the husband file and serve any amended application or reply together with supporting affidavits and a Financial Statement within 28 days of the date of this Order;

   d)the wife file any further material to be relied on at the interim defended hearing within 40 days of the Order;

   e)on or before 23 October 2019, the husband file and serve a brief outline of submissions not exceeding five pages in length;

   f)on or before 28 October 2019, the wife file and serve a brief outline of submissions not exceeding five pages in length.

5. On 22 October 2019, the husband filed a further affidavit in the proceeding.  That affidavit responded to the wife’s affidavit made on 23 August 2019.  Apart from that document, the husband has not filed any other documents in the proceeding, save for his initiating documents.  The wife alleges that the husband has also not provided discovery as required by the orders above.

6. In support of her interim application, the wife filed, as contemplated by the orders made on 26 August 2019, an outline of case as well as a further affidavit affirmed 25 October 2019.

7. When the matter was called on for hearing, Counsel for the husband indicated that his client was not present, and that his instructors had been unable to make contact with the husband that morning.  He sought that the matter be stood down.  The matter was stood down for a brief time.  On the matter being recalled, it was apparent that no contact had been made with the husband. Counsel for the husband and his practitioner sought leave to withdraw from acting on the basis that they did not have instructions. I declined to make this order.  I proceeded to hear the matter. I did so because the date of the interim hearing had been set more than two months ago, the husband was aware of the date, and because he had filed some material, being his two affidavits, before the Court.

The application for interim spousal maintenance

Legal Principles

1. Section 72 of the Family Law Act 1975 (‘Act’) sets out the right of a spouse to maintenance.  The section provides as follows:

   ‘(1)   A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)     by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)     by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c) for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   …’

2. Section 74 of the Act then sets out the power of the Court in spousal maintenance proceedings. Relevantly to this application, section 74(1) of the Act permits the Court to ‘make such order as it considers proper for the provision of maintenance in accordance with this Part’.

3. As is apparent from the terms of section 72, the Court is required to take into account the matters set out in section 75(2) of the Act. Section 75(2) provides as follows:

   ‘(2)   The matters to be so taken into account are:

   (a)     the age and state of health of each of the parties; and

   (b)     the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)     commitments of each of the parties that are necessary to enable the party to support:

   (i)     himself or herself; and

   (ii)     a child or another person that the party has a duty to maintain; and

   (e) the responsibilities of either party to support any other person; and

   (f)     subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)  any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)     where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)     the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)   the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)     the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)     the need to protect a party who wishes to continue that party’s role as a parent; and

   (m)    if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

   (n)     the terms of any order made or proposed to be made under section 79 in relation to:

   (i)     the property of the parties; or

   (ii)     vested bankruptcy property in relation to a bankrupt party; and

   (naa)    the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)     a party to the marriage; or

   (ii)     a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)    the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)    vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)     any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)     the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)     the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.’

4. In In the Marriage of Bevan (1993) 120 FLR 283, the Full Court of the Family Court of Australia summarised the principles to apply when dealing with applications for spousal maintenance. The Full Court stated at page 42 as follows:

   ‘Taken together then, we would state the law as being that an award of spousal maintenance requires:

   (1) a threshold finding under s 72;

   (2) consideration of s 74 and s 75(2);

   (3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and

   (4) discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstance” as the guiding principle’.’

5. I now proceed to consider the application and the evidence in light of the principles above.

Consideration

1. The evidence in relation to the financial position of the husband and whether he is in a position to provide maintenance is as follows.

2. The husband in his affidavit material agrees that he is engaged as a health care worker.  He accepts that in the financial year ending 30 June 2016, his taxable income was $207,917 which included management fees of $72,325.  He accepts that in the financial year ending 30 June 2017, his taxable income was $230,540 with management fees of $126,390.  He also accepts that for the financial year ending 30 June 2018 his taxable income was $274,976 with management fees of $138,954.  The Court does not have before it any information relating to the husband’s income for the 2019 financial year. There is no explanation of the management fees that have been said to have been incurred.

3. The above matters not only provide some insight into the husband’s ability to earn an income, but disclose that his income has increased year on year.  There is little doubt that he has the ability to earn a good income.

4. On the basis that the husband presently earns a taxable income equivalent to that which he earned in the 2018 financial year, based on the income tax returns before me, it appears he earns an income of $3,072 per week once tax is subtracted and the Medicare levy is paid. The wife submitted that I should also add back to this amount amounts for voluntary superannuation contributions and amounts that the wife was paid in salary by the husband. If those amounts are added back, the husband’s weekly income would be closer to $3,500 per week net of tax.

5. Quite apart from the husband’s income, the husband accepts that he removed $70,000 and $10,000 from a Macquarie Bank account, as noted above, when the relationship broke down. His explanation for the withdrawal of these funds was that he was concerned the wife would access the funds and go to Country G with the child. The wife is originally from Country G.

6. Finally, the husband concedes at paragraph 31 of his affidavit, affirmed on 21 October 2019, that he is:

   ‘…prepared to pay to the Respondent such amount as this Honourable Court considers appropriate by way of spousal support until such time as there is a final settlement between and have paid child support as is assessed by the Agency which is based on my taxable income’.

7. There are two other matters that bear on the husband’s capacity to pay spousal maintenance to the wife. First, he presently resides with his mother.  The wife remains in the former matrimonial home with the child.  In his affidavit, the husband states that he anticipates that he will obtain independent accommodation which will cost him $700 per week.  He has deposed that he requires a two-bedroom unit so that he can eventually have X stay overnight.  

8. Second, the Family Report (which I refer to in greater detail below) recommends that the husband commence spending time with X ‘on a supervised basis in the mornings or early afternoons for two periods of three hours each week’ (Paragraph 73 of the Family Report).  I am mindful that the husband will need to meet the cost of supervision.  I do not have any evidence before me about the actual costs of any supervision.  Counsel for the Wife informed the Court that his understanding was that supervision at a contact centre may cost approximately $90 per hour.

9. In the circumstances, I am satisfied that the husband has the capacity to pay spousal maintenance having regard to his income, and also because he has access to the amounts removed from the parties’ joint funds from Macquarie Bank.

10. I am also satisfied that the wife is a person who has care and control of a child of the marriage who has not attained the age of 18 years.

11. I now turn to deal with the whether the wife is unable to adequately support herself.

12. The wife receives a single parent pension of $397 per week and a family tax benefit of $100 per week. I do not take these matters into account having regard to the terms of section 75(3) of the Act.

13. The wife receives an amount in child support. The documents before me disclose the amount of child support to be paid by the husband is $439 per week. Counsel for the wife, however informed the Court that the amount of child support received is approximately $2150 per month. If this figure is correct, then the amount of child support received is closer to a figure of approximately $500 per week.

1. The wife presently lives with X in the former matrimonial home.  She is not working.

2. Under the Orders made by consent on 26 August 2019, a variety of the wife’s expenses are presently met by the husband.  I have previously set out the terms of the relevant Order above. In respect of the expenses the husband is paying pursuant to the orders, I note the following:

   a)The wife’s estimate of these expenses, as contained in her Financial Statement, are as follows:   

   i)Mortgage repayments:  $485 per week;

   ii)The body corporate and council rates. The wife estimates council rates and water rates as $55 per week. No estimate is provided for body corporate fees;

   iii)Other rates and levies on the property: the husband is meeting these, but the wife cannot estimate a value.

   b)Part G of the wife’s Financial Statement discloses estimates for the following amounts that the husband is now required to pay under the orders made on 26 August 2019:

   i)Contents insurance on the property: $5 per week

   ii)Private health insurance: $65 per week

   iii)Motor vehicle registration: $15 per week.

   c)Part N of the Financial Statement prepared by the wife contains estimates of the following which are now being paid by the husband under the orders made on 26 August 2019: Gas, electricity, heating fuel, internet and telephone: $115 per week.

3. While it is not possible to obtain precise values, the above indicates that the effect of the current orders is that the husband is currently paying an amount of at least $740 per week toward the maintenance of the wife and X. It may be more than this, though it is not possible to assess. This amount is being paid in addition to the amount paid by the husband in respect of child support.

4. Under Part N of her Financial Statement, the wife has itemised expenses incurred by her and X.  The following matters become apparent on review of Part N and having regard to the submissions of the wife’s Counsel:

   a)The wife’s total expenses for herself are estimated at $724 per week.  Notwithstanding this, the amount that she seeks by way of spousal maintenance ($750 per week) exceeds this amount.  No explanation was given for this variation.

   b)The Financial Statement was filed with the Court on 23 August 2019.  Subsequent to that, the husband agreed to the consent Orders of 26 August 2019 in which he agreed to meet a number of the expenses that the wife has itemised in Part N.  When questioned about this, Counsel for the wife properly conceded that there ought to be no double dipping and that adjustments need to be made for this.

   c)I have some reservations about the amounts specified in Part N.  By way of example: the total amount claimed for food is $330 per week, of which $180 per week is for the wife.  Clothing and shoes for the wife is estimated at $70 a week.  Hairdressing and toiletries for the wife are estimated at $80 per week.

5. In assessing whether maintenance ought to be paid to the wife, I also have considered the following, which I have ascertained from the affidavits before me:

   a)The parties married on … 2011 and separated on 3 March 2019.  The wife emigrated from Country G in 2012.

   b)The wife deposes that she has no qualifications in Australia.  Since X was born, she has been the primary caregiver and homemaker.  X is three years old.

   c)The wife deposes that the husband did not support her desire to study.  While ultimately a matter for trial, this may have impacted her capacity to earn an income.

6. On the basis of the evidence before me, I am satisfied that the wife is not able to support herself adequately.

7. The issue then for determination is the amount of spousal maintenance that the wife should be paid.  I have determined that an amount of $400 per week is the amount that ought to be paid, such amount being paid to her in addition to the expenses the husband is currently paying pursuant to the Orders made on 26 August 2019. I have reached this view for the following reasons:

   a)It is an amount the husband has the capacity to pay, given his income and the amount he has withdrawn from the Macquarie Bank accounts.

   b)The husband will incur other expenses in order to rehouse himself. He will also incur fees relating to the supervision of time with X.

   c)The wife has the benefit of living in the matrimonial home. She does not face any costs of rehousing herself or X.

   d)The wife is having a number of her expenses met as a result of the interim orders made by this Court on 26 August 2019, which means that she is not out of pocket in relation to those expenses.

   e)The wife is in receipt of child support for X.

   f)The reservations I have expressed about the amount of the expenses claimed by the wife in Part N of her Financial Statement.

8. The wife, in her application, also sought orders in relation to covering the costs, repairs and maintenance of the B Street, Suburb C, and an order in respect of ‘non-reportable’ hospital, medical and other health related costs. These matters were not the subject of submission before me. Further, it is not clear to me what ‘non-reportable’ is, or why it is sought. In the circumstances, I decline to make the orders sought.

Departure for Child Support Assessment 

1. The wife also seeks a departure from the administrative assessment of child support as assessed by the Child Support Agency.

Legal Principles

1. The CS Act is an Act that makes provision for determining the financial support payable by parents for their children. Division 4 of Part 7 concerns ‘Orders for departure from administrative assessment in special circumstances’. Division 4 of Part 7 applies only in the circumstances that are provided for by section 116 of the CS Act. Further, section 116(1) of the CS Act provides that an application may be made to a Court for an order under Division 4 in relation to a child in the ‘special circumstances’ of the case. Once a valid application for departure has been made, section 117 of the CS Act sets out the matters that the Court must be satisfied about before making a departure order and expresses a requirement that the application is one that has been made in the ‘special’ circumstances of the case: see subsections 117(1)(a), 117(2)(a), 117(2)(b) and 117(2)(c). Further, section 117(4)(a) to (g) sets out the matters that the Court must have regard to in reaching a determination as to whether it would be just and equitable to make a departure order.

2. It has been held that a three step process must be followed when determining an application for a departure order.  The three steps are as follows:

   a)first, special circumstances for bringing the application before a Court must be established upon one or more of the grounds that is set out in section 117(2);

   b)second, if those grounds are established, it must be just and equitable to make a particular order having regard to the matters in subsections 117(4)(a) – (g);

   c)third, it must otherwise be proper to make a particular order.

   See: In the Marriage of Gyselman (1991) 103 FLR 156; Beklar v Beklar [2013] FamCA 327.

3. The text of section 117(2), subsections (a)-(c), use the phrase ‘in the special circumstances of the case’. That the matter must be special is also emphasised by sections 116 and 117 of the CS Act.

4. In Gyselman, the Full Court stated that the phrase ‘special circumstances’ was not amenable to precise definition, but was intended to convey that the case was special or out of the ordinary.  The ordinary dictionary definition of ‘special’ means ‘of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character quality or degree’.

5. A review of the case law indicates that circumstances that might be regarded as ‘special’ include where a party would incur high costs of interstate travel for the purposes of spending time (Gyselman), where a parent has deliberately left employment for the purposes of negating the operation of the CS Act (In the marriage of Bolton (1992) 107 FLR 131), and where a parent has continued to deny the paternity of the child, such issue having been affirmatively established (Dwyer v McGuire (1993) 114 FLR 325).

Consideration

1. The relevant threshold issue in this case is whether the wife has established special circumstances.

2. The wife submits that the special circumstances in this case are as follows. The husband’s tax returns do not accurately reflect his income and financial resources. He has the capacity to structure his financial affairs and his income to his advantage. His income is beyond what he has disclosed to the child support agency and it is therefore proper that a departure order be made.

3. It seems to me that I am being invited to make a finding that there is something improper or unlawful about the way in which the husband has structured his income, and then disclosed his income to the Tax Office and the child support agency, and that this constitutes special circumstances warranting a departure from child support assessment. If this is what is being put, I decline to make such a finding. I accept the husband has not provided complete disclosure. That, however, is a long way from making a finding that the husband is improperly or unlawfully reducing his income to avoid making payments to the Child Support Agency. The evidence before me does not support such a finding being made.

4. In my view, the wife has not satisfied the Court that her circumstances fall within the grounds for departure set out in section 117(2) of the Act. Further, I do not regard the argument she advances as amounting to ‘special’ circumstances when one has regard both to the ordinary meaning of that term and the observations of the Full Court in Gyselman. 

5. I am also not satisfied that it would be just and equitable to grant the departure order when one has close regard to the evidence that is before me. 

6. The amount of child support currently received by the wife according to the documents before me is approximately $439 per week. However, her Counsel advised she is receiving an amount by way of child support of $2,150 per month.  When this figure is converted to a weekly amount (by dividing it by 4.33 weeks per month) the amount received by the wife from the husband by way of child support for X is approximately $500 per week. 

7. Part N of the Financial Statement filed by the wife discloses that she estimates costs for X to be $525 per week.  On the wife’s estimate therefore, child support is falling short by $25 per week.

8. I have reviewed closely the items that comprise the wife’s estimate of $525 per week in expenses for X.  X is only three years old.  I have some reservations about the following amounts claimed by the wife in respect of X.  This includes an amount of $150 per week for food, an amount for clothing and shoes of $60 per week, an amount for entertainment and hobbies of $70 per week, an amount for books and magazines of $30 per week and an amount for hair dressing and toiletries of $20 per week.

9. I also note in respect of Part N that the wife has estimated for X the costs of items like gas and electricity.  As I noted earlier, the husband has previously agreed to meet these costs under the terms of the consent order referred to earlier.

10. In all the circumstances above, I am not satisfied that special circumstances exist for me to depart from the assessment of child support.  I therefore decline to do so.

11. There is one further aspect to this case that warrants mention.  At the interim hearing, the wife claimed, among other things, periodic child support in the sum of $500 per week (net of taxation) and the payment of non-periodic child support for various specified items.  This much is apparent from the orders she sought in her Response filed with the Court on 23 August 2019.  The oral argument before me proceeded on the basis of the claim for periodic child support in the sum of $500 per week.  At the conclusion of the hearing I asked Counsel for the wife to submit a minute of the specific orders he sought.

12. The solicitors for the wife subsequently submitted a minute of orders.  The minute seeks an additional sum of child support of $500 per week in addition to the child support the husband currently pays.  No explanation was provided for this apparent amendment of the claim.

13. It is unacceptable that legal representatives of a party or the party themselves seek to significantly change their claim at the time a minute of order is submitted.  The case was argued before me on a different basis.  The proposed orders and the response specified different claims.  The husband, while absent by his own choice, was not on notice of this claim.  Legal representatives have an obligation to the Court to ensure a case is presented properly and fairly.  This does not appear to have been done in this case. 

Parenting arrangements

1. The husband is presently spending time with X pursuant to the consent orders made on 26 August 2019.  Those orders provide that the husband is to spend time with X for two hours per week supervised by a professional supervisor.

2. Since the orders above were made, the parties have attended upon a family consultant, Dr D, and a Family Report is in evidence before me. That report discloses that the husband wishes to spend time with X each alternative weekend from Saturday 5pm to Monday 6 pm, each alternate Wednesday night from 5pm to 6pm and for a three hour block every Monday, Wednesday and Thursday, as well as telephone time.

3. The Family Consultant has indicated that the husband’s goal set out above is aspirational and is not developmentally sensitive.  Instead, the Family Consultant has made a number of recommendations which include the following:

   a)that the husband spend supervised time with X in the mornings or early afternoons for two periods of three hours each week;

   b)that additional contact occur via Skype;

   c)that the husband be restrained from discussing illnesses with X;

   d)if the husband is able to cope with the regime proposed, then consideration could be given to increasing his time with X on an unsupervised basis, such increases to occur in a graduated manner;

   e)if the husband is found to be a competent single-parent and drug-free, a single overnight per fortnight could be introduced from when X is aged four years, with an additional overnight to be added the following year.

4. The wife indicated through her Counsel that she would accede to parenting orders in conformity with the recommendations made by the Family Consultant. 

5. I propose to make parenting orders consistent with the recommendations of the Family Consultant.  I regard such orders, having reviewed the Family Report, as being in the best interests of X.  I observe that the recommendations in the Family Report are more beneficial for the husband than the present arrangements.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 21 November 2019