Needham & Shao (No 3)
[2023] FedCFamC1F 388
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Needham & Shao (No 3) [2023] FedCFamC1F 388
File number(s): SYC 5643 of 2020 Judgment of: ALTOBELLI J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks for the child to spend less time with the father – Where the mother seeks for the child’s time with the father to be supervised – Where the mother alleges physical abuse by the father – Where father seeks more time with the child for a special occasion – Finding that the facts do not justify varying current parenting orders.
FAMILY LAW – SPOUSAL MAINTENANCE – Where the mother seeks increased spousal maintenance – Where the mother has a need for spousal maintenance and the father has capacity to pay – The amount of spousal maintenance is increased.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75 Cases cited: Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Huffman & Gorman [2015] FamCA 317
Jelbart & Ganzer [2018] FCCA 1771
Needham & Shao (No 2) [2023] FedCFamC1F 326
Needham & Shao [2021] FamCA 576
Needham & Shao [2022] FedcFamC1F 914
Orwell & Watson [2008] FamCAFC 62
Pilot & Silver [2022] FedCFamC1A 191
Redmond & Redmond [2014] FamCAFC 155
MS & PS (2006) FLC 93-268; [2006] FamCA 588
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 8 May 2023 Place: Sydney Solicitor for the Applicant: Swifte Law Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5643 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAO
Applicant
AND: MR NEEDHAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.The parenting orders sought by the Applicant mother (“the mother”) in her Amended Application in a Proceeding filed 5 May 2023 are dismissed.
2.The parenting orders sought by the Respondent father (“the father”) in his Response to an Application in a Proceeding filed 17 April 2023 are dismissed.
3.Pending further order, the father shall pay to the mother the sum of $956 net per week by way of spousal maintenance into a bank account nominated by the mother on Monday 22 May 2023 and thereafter the payments shall be made to the mother each Thursday.
Trial directions
4.By no later than 4pm on 22 July 2023, each party file and serve a single consolidated updating affidavit.
5.By no later than 4pm on 22 July, each party file and serve an updated Financial Statement.
6.By no later than 4pm on 25 July 2023, the parties shall have conferred, settled and forwarded to my Associate in electronic form a joint trial plan which allows for the trial to be completed within four days.
7.By no later than 4pm on 25 July 2023, the mother and the father each file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
8.By no later than 4pm on 27 July 2023, the Independent Children’s Lawyer file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
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 the pseudonym Needham & Shao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the Court’s decision in relation to the Application in Proceeding filed 10 March 2023 and Amended Application in a Proceeding filed on 5 May 2023 by the respondent mother (in the substantive proceedings) (“the mother”) and the Response to an Application in a Proceeding filed on 17 April 2023 by the applicant father (in the substantive proceedings) (“the father”). The first set of interim orders in relation to this application and response are dated 24 April 2023. This matter continues to be about the parties’ child, X, who is three years old (“the child”). The present application involves parenting orders as well as spousal maintenance.
BACKGROUND
Matters of the background are adequately set out in my previous reasons for judgment dated 6 August 2021 (Needham & Shao [2021] FamCA 576), 11 November 2022 (Needham & Shao [2022] FedCFamC1F 914) and 24 April 2023 (Needham & Shao(No 2) [2023] FedCFamC1F 326).
The final hearing of this matter remains part heard. The adjourned part-heard hearing will resume 31 July 2023 and is listed for four days. Further trial directions will be made. Mr S, clinical psychologist, will prepare an updated single joint expert report and is expected to meet the mother, the father and the child again in June.
The current parenting orders relating to the child, dated 6 August 2021, provide that he lives with the father, currently, from 8.00 am on Saturday to 4.00 pm Sunday each week, and also on special occasions. He otherwise lives with the mother. On 11 November 2022 I discharged the order for FaceTime communication three times per week and replaced it with an order for FaceTime communication on Wednesdays between 5.00 pm and 5.30 pm. The present application before the Court represents the second attempt to vary these orders.
The only objective and independent expert evidence is that of Mr S dated 7 April 2021. Cross‑examination of Mr S has commenced but not concluded. His evidence remains the only objective and independent expert evidence before the Court. Even though his cross‑examination is not completed, the Court places significant weight on his evidence: Pilot & Silver [2022] FedCFamC1A 191 at [36]; Redmond & Redmond [2014] FamCAFC 155 at [22]; Jelbart & Ganzer [2018] FCCA 1771 at [53]. In my reasons for judgment dated 6 August 2021 I discussed the report of Mr S at [25]–[41]. In my reasons for judgment made 11 November 2022 I made a number of further observations about this evidence including at [13], [16] and [19].
I continue to hold the preliminary views expressed in my earlier reasons including about the expert evidence of Mr S, noting of course, that neither his cross-examination nor the totality of the evidence has been completed. In particular, the Court observes the prescient statement of Mr S at paragraph 78 of his report:
78.High conflict individuals tend to perceive threat and danger in their interactions with others, react aggressively or defensively, that inevitably invites a similarly negative and hostile response back, that further heightens their sense of vulnerability and the attack that in turn justify their aggressive reaction. The cyclic nature of this interaction is evident in the actions and reactions of both [Mr Needham] and [Ms Shao], and so the cyclic nature of the conflict not only continues but escalates. This type of interaction is common place in Family Law disputes, but amplified substantially in matters entailing relocation.
The cyclic nature of the interaction between the parents continues and escalates, and both the mother and the father are seemingly blind to how their actions and responses contribute to the escalation.
ISSUES
By way of an Amended Application in a Proceeding filed 5 May 2023 the mother seeks the following orders:
Parenting
2.That Orders 2, 3(a), 3(b), 3(d) and 3(g) of the interim Orders made on 6 August 2021 be suspended.
3. That the Father spend time with the child [X] born […] 2019 supervised by a private supervision service such as [E Service] or [G Service] for 4 hours every alternate Saturday or Sunday from 10:00am to 2:00pm or otherwise at times suitable to the private supervision service.
Spouse Maintenance
4. That pending further order the Respondent Husband shall pay to the Applicant Wife the sum of $1830.00 net per week by way of spousal maintenance into a bank account nominated by the Applicant Wife on Thursday 27 April 2023 and thereafter the payments shall be made to the Applicant Wife each Thursday.
5. That pending further Order and by way of spousal maintenance the Respondent Husband shall pay to the Applicant Wife the sum of $144.00 per month and/or the amount required for the insurance to remain current on the first day of each month and monthly thereafter to maintain the Applicant Wife’s medical insurance with [Y Health Insurance].
6. That pending further the Respondent Husband shall cause to be paid by way of spousal maintenance to the Applicant Wife’s nominated bank account or as she may direct in writing within 7 days of receiving invoices and/or receipts the following:
6.1any and all general or specialist medical, dental, optical, psychology or psychiatric and pharmaceutical health expenses (“health expenses”) not able to be recovered by the Applicant Wife from her [Y Health Insurance] (“the fund”);
6.2in the event that the Applicant Wife is not eligible for health insurance cover for any of the health expenses, the Respondent Husband shall pay the whole of the health expenses as and when incurred pursuant to these Orders;
6.3all payments usually provided by Medicare for the Applicant Wife’s health expenses;
6.4The Applicant Wife shall provide to the Respondent Husband within 14 days of her receipt of same all such documents or statements as she may receive from the fund accounting for the gap payments not able to be recovered from the fund and in the event of any overpayment by the Respondent Husband of the gap then within a further 14 days the Applicant Wife any overpayment to the Respondent Husband.
7. That Order 4 of the Orders made on 27 January 2023 be discharged.
By way of a Response to an Application in a Proceeding filed 17 April 2023, the father seeks the following orders:
1. Order 2 of the Orders dated 6 August 2021 be varied to provide for the child, [X] born […] 2019 ("[X]") to live with the father from 12pm on Friday 7 July 2023 to 6pm Sunday 9 July 2023.
2. In the alternative that Order 1 of these proposed orders is not made, that in lieu of [X] living with the father from 8am Saturday 8 July 2023 to 4pm Sunday 9 July 2023, [X] lives with the father from 8am Monday 10 July 2023 to 4pm Tuesday 11 July 2023.
3. The parties do all acts and things and sign all documents necessary to facilitate [X's] enrolment and attendance at [L School, Suburb T] on Monday's and Friday's each week, or if those two days are not suitable, then two other weekdays each week, with the father to be responsible for the cost of [X's] attendance.
In her Outline of Case Document, received physically at the interim hearing, the Independent Children’s Lawyer seeks the following orders:
1.That the orders sought by the mother to limit [X’s] time with the father be dismissed.
2.That the father’s application over the weekend of 8 July, 2023 to travel for one night be granted.
3.That the orders sought by the father regarding [X] commencing pre school be dismissed.
The Court thus has to determine the following issues:
(1)Whether, and if so how, the existing parenting orders should be varied; and
(2)Whether orders should be made for spousal maintenance, and if so in what form and quantum.
REPRESENTATION OF THE PARTIES
The father represented himself, the mother was represented by her s102NA solicitor, Ms Swifte, acting on a pro bono basis, and the Independent Children’s Lawyer, Ms Smith, appeared for the child.
EVIDENCE
The evidence relied upon by the mother is referred to in her case outline document, including:
(a)Response to Final Orders filed 1 September 2020;
(b)Application in a Proceeding filed 10 March 2023;
(c)Notice of Child Abuse, Family Violence or Risk filed 10 March 2023;
(d)Financial Statement filed 10 March 2023;
(e)Her affidavit filed 10 March 2023 (“M1”) – Disqualification of Counsel, Spouse Maintenance and Y Health Insurance issues;
(f)Her affidavit filed 10 March 2023 (“M2”) – Parenting issues; and
(g)Expert Report of Dr S dated 7 April 2021.
The evidence relied upon by the father was outlined in an email received on 21 April 2023, including:
(a)His affidavit filed 17 April 2023;
(b)Written submissions filed 17 April 2023; and
(c)Response to an Application in a Proceeding filed 17 April 2023.
The evidence relied upon by the Independent Children’s Lawyer is referred to in her case outline document, including:
(a)Affidavit of Ms Shao filed 10 March 2023.
(b)Affidavit of Mr Needham filed 17 April 2023.
APPLICABLE LAW
The applicable law in relation to parenting proceedings has been set out in previous judgments and thus will not be reproduced again save for the issue of unacceptable risk of harm to the child, which was raised as the central element of the mother’s parenting case.
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court's decision in W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892, at [93]–[115]. It was a case that involved allegations of sexual abuse, but the same principles apply to other forms of abuse, such as physical, emotional, and psychological: see, for example, Orwell & Watson [2008] FamCAFC 62; Huffman & Gorman [2015] FamCA 317.
Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:
72 Right of spouse to maintenance
(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).
As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act.
In MS & PS (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:
(1)Can the applicant support themselves adequately?
(2)If not, what are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet those needs?
(4)What order is reasonable, having regard to s 75(2) of the Act?
DISCUSSION
Parenting issues
The mother’s case in support of the quite substantial changes to the existing arrangement for the child to spend time with the father was expressed in terms of needing to protect the child from exposure to physical, emotional and psychological harm in the father’s care. The mother’s evidence refers to a number of disclosures made by the child.
Both the father and Independent Children’s Lawyer submitted that there was no such risk. It was, however, at least implicit in the Independent Children’s Lawyer’s case that the child continued to be exposed to risk of harm arising out of the intense high conflict which permeates the parents’ dispute about the child.
The Court finds that there is no unacceptable risk of abuse to the child which is any greater than that to which he was exposed on the previous occasion when the Court was asked to consider varying parenting orders.
Based on its experience, as well as the expert evidence, this Court has no doubt that the child has been exposed to, and is thus aware of, the mother and the father’s intractable conflict about him. The child is the most vulnerable in this triad of vulnerable people.
Even if the Court accepts that the mother heard the child say the things to which she deposes, and observed the bruise to which she refers in her evidence, it does not necessarily follow that in the context of this case, the father either said anything, or did anything, causative of what the mother heard and observed. The mother has failed to consider any other plausible alternative explanation for what her son has said, or for the bruise that he experienced. It is possible, for example, that the child inadvertently overheard conversations in his household. It is possible that as an active child he injured himself in the course of play. It is possible that what he told his mother is a distorted version of what actually occurred. The context of this case cannot be ignored. The amplification of perceived threats, referred to by Mr S, is manifested in the most recent allegations. There are unresolved issues about the credit of both parents.
As Ms Smith correctly submitted, the facts on which the mother relies occurred within a short period of less than a month. There is an unexplained delay before she took the child to see a doctor. The doctor’s notes were produced in evidence not by the mother, but by the father. The notes record no disclosure by the child. There is nothing to indicate that the doctor, who is a mandatory reporter under state law, made a report to the child welfare authorities. The doctor’s notes refer to the mother keeping ‘digital photos’ but these were not tendered in evidence. There is no suggestion of non-accidental injury. The Court is satisfied that there is no further risk of harm to the child that warrants the dramatic reduction in both the time with his father, and its circumstances.
The parenting orders sought by the mother in her Amended Application in a Proceeding filed 5 May 2023 are dismissed.
The father sought parenting orders in his Response to an Application in a Proceeding filed 17 April 2023. In any case but for the present one, the father’s proposal to extend his time with his son so that he can attend a family wedding would be regarded as a reasonable, modest one. In the context of the intractable conflict that is occurring in this case, the issue presents as yet another flashpoint for these parents. The context includes the fact that this is an international relocation case which is due to be heard on 31 July 2023. If the mother succeeds in her application, the benefit to the child of meeting and spending time with the father’s extended family is questionable. If the father succeeds, the benefit to the child is something that could easily be replicated at a later time. The mother’s recent allegations represent amplification of her concerns about the father’s existing time with the child. The mother’s other serious allegation about coercive and controlling behaviour has not been adjudicated on. Her opposition to the father’s proposal was couched in terms of this being a manifestation of his alleged pattern of manipulation and coercive control. Other than noting the submission made on her behalf, it is simply not appropriate for this Court to make any comments at this stage. It is her belief, and one which she claims to genuinely hold. The Independent Children’s Lawyer quite correctly submitted that both parents express concerns, occasionally quite serious concerns, about various aspects of the changeover. In submissions the father himself referred to problems which he perceives with changeover, suggesting, in effect, that the mother was disproportionately responsible for these difficulties.
Thus, in the context of this intense parental conflict, the Court leans towards caution and trying to preserve an existing routine and framework for the child to spend time with the father, which is already vulnerable. The fact is that there is no goodwill between the parents and, respectfully, it does not behove the father to submit that he is not contributing to the conflict between them. That may well be his genuine perspective, and only time will tell whether the Court ultimately concurs.
At this juncture, it will be sufficient to point to some occasions where the father has, perhaps unknowingly or unintentionally, contributed to the conflict between the parties. These instances mostly relate to the mother’s statement at paragraph 30 of her affidavit that “[the father’s] responses to my requests for anything or any financial assistance is to request extensive lists of documentation which are exhausting, stressful and time-consuming”.
For example, when the mother asked the father for his consent to obtain a United States passport for the child, the father instructed his solicitor “to write to CMN seeking clarification so that I could properly consider and respond to [Ms Shao's] request…I was open to consenting to [Ms Shao's] request but required further clarity so that I could make an informed decision” (father’s affidavit filed 17 April 2023, paragraphs 48–49). This resulted in a great deal of back and forth correspondence, and the issue still has not resolved, which has contributed to the conflict.
Another example is when the mother asked the father for money to cover the Our Family Wizard (“OFW”) subscription and some utility bills, the father replied:
“So that you can comply with the interim orders I can pay the OFW fee today on the basis that you pay that money back over the next 8 weeks ($21.25/wk). In order for me to properly consider your request for the other things, please send me up to date bank statements for all of your accounts going back 6 months, and copies of the outstanding bills” (father’s affidavit filed 17 April 2023, paragraph 75).
The mother did not renew the OFW subscription because she deposes she could not afford for the father to deduct the repayments out of her spousal maintenance (mother’s affidavit filed 10 March 2023, paragraph 22). The mother also did not provide the father with adequate evidence of the utility bills, so these were not paid by the father (father’s affidavit filed 17 April 2023, paragraph 76). The possibility that the father’s request for six months of bank statements might be experienced by the mother as intrusive and disproportionate to the issue at hand seems to have not been considered by the father.
A final example is when the mother asked the father to keep her on his O Health Insurance policy (whilst she was also covered by the U Health Insurance policy), or pay for her Y Health Insurance policy. He requested further information about the differences in policies and for her to “send me a copy of your policy, including the policy number…” (father’s affidavit filed 17 April 2023, paragraph 118). The mother said that it “became financially draining to engage in these futile legal correspondences with [the father]” and she is currently still unable to afford the Y Health Insurance policy (mother’s affidavit filed 10 March 2023, paragraph 6).
These interactions all had the potential to contribute to the conflict between the parties.
The father also proposes that the Court make an order for the child to be enrolled in a preschool. The mother opposes this. This is a coercive order. It would require the mother to do something that she does not want to do i.e. enrol the child in preschool. From her perspective this is another example of the father’s coercive and controlling behaviour. Whilst the benefits to children in general of attending preschool are arguably largely self-evident, it does not follow that there is a benefit to this child of attending preschool in the context of this case. If the mother succeeds in her application, commencing preschool next year may be of no discernible disadvantage to the child. If the father succeeds in his application, on one view attendance at preschool may well be found to have been disruptive for him. The generosity of the paternal grandfather through his willingness to fund the child’s attendance at preschool is acknowledged, but ultimately does not inform the Court’s decision in this regard. Given the history of this case, the Court can only see attendance at preschool as yet another opportunity for parental conflict. A decision in this case needs to be made on a final basis.
The parenting orders proposed by the father are dismissed.
Spousal maintenance
The orders sought by the mother have been identified above. It was the theme of the father’s case that he could no longer afford to pay the informal maintenance that he currently pays. It is common ground that there is no order for maintenance. It seems common ground that the father currently pays maintenance totalling $1,013 per week which consists of child support of $363, and spousal maintenance of $650 per week.
The threshold issue about the mother’s need for maintenance is adjudicated in her favour, in the context of this case. Even the father acknowledges that the mother is the primary carer of the child and has been since birth. He has voluntarily paid what the Court will characterise as spousal maintenance, as if her need for it was not in doubt. The fact that the mother is a university graduate does not, of itself, indicate that she is not in need. The visa that she is on does not entitle her to work for more than 20 hours each week. Her preference is to be a mother for the child who is only three years old. Her proposal is to return to the United States with the child, as soon as possible. Even if she could find work for 20 hours weekly or less, it would be reasonable for her to disclose to her employer the circumstances of this case and in particular her proposal. This might make employment prospects more difficult. The cost of childcare whilst the mother would be working has not been specifically considered, notwithstanding the paternal grandfather’s generous offer. Therefore, a finding that the mother is not in need of spousal maintenance is not open on the facts of this case.
The focus turns to assessing the mother’s needs for maintenance, and the father’s capacity to pay.
The evidence about the mother’s need is principally found in her Financial Statement filed 10 March 2023. Perhaps the most significant evidence is found in Part N where she deposes to total needs for herself of $1,093 per week. A major problem with the mother’s case is that at paragraph 17 of her affidavit filed 10 March 2023 she deposes that the expenses set out in Part N are an estimate, and include items that she would like to have available to her, and which were available to her during the relationship with the father, but which she is currently unable to afford to pay for. The mother’s solicitor was unable to assist the Court, from the bar table, about which of the Part N expenses fit into which category. Moreover, there were no source documents which would assist the Court as regards these expenses. The Court is left in a situation where it must do the best it can based on all information available to the Court in the context of this hearing. It may well be, therefore that some of the Court’s findings seem arbitrary. It was within the capacity of the mother to adduce evidence about these expenses but she failed to do so.
The Court finds the mother’s Part N expenses for herself to total $805 per week. The claim for house repairs is disallowed, as she is in rented accommodation. The claim for gas is reduced to $20 per week, for electricity to $43 per week, for internet to $17 and for telephone to $17 per week. These findings are based on the evidence adduced by the father about these expenses in his affidavit filed 17 April 2023. The claim for clothing and shoes of $100 per week is excessive and is reduced to $35 per week, comparable to the husband’s claimed expenditure. The claim for hairdressing and toiletries at $60 per week is excessive, and is reduced to $20. The claim for other necessary commitments at $200 per week is unspecified but the Court accepts that Part N could not possibly comprehensively capture all reasonable living expenses. $80 per week is allowed.
Turning to Part G expenditure, items 29, 30 and 31 are not allowed, as the mother concedes that these payments are not being made, even if they are owed. The only other expenditure is rental of $674 per week. The Court finds that any other item of expenditure not otherwise specifically identified above is found to be reasonable.
Thus, the total of Part G expenditure of $674 per week together with the Part N expenditure of $805 per week, means that the mother’s need is $1,479 per week.
The Court notes that the husband pays child support as assessed, at $363 weekly. In her Financial Statement at Part N, the mother asserts that her weekly expenses attributable to the child alone amounts to $737 per week. It is not inconceivable that the amount of child support assessed does not meet the actual needs of the child. It is not clear from the mother’s case, however, whether she sought spousal maintenance to make up the difference. This would be problematic, of course, because the mother could then bring child support departure proceedings seeking an assessment to reflect a higher proportion of the child’s needs. In the circumstances, the Court declines to infer that spousal maintenance was sought in regards to the difference between the actual cost of the child and child support as assessed.
In any event, the Court would have found that many of the items of expenditure for the child were excessive either because they were duplicated in the mother’s expenses or were simply implausible given the case that the mother presents about her financial impecuniosity (for example, clothing and shoes, and children’s activities, books and magazines, and gifts).
There is an $829 per week shortfall between the mother’s need for spousal maintenance, and the amount the father currently pays.
In his Financial Statement filed 24 January 2023 the father deposes to income of $5,994 per week, and expenses of $6,188 per week, which includes maintenance of $650 per week and child support of $352 per week. In his affidavit, however, sworn after the Financial Statement, he deposed to child support of $363 per week.
The focus now turns on the father’s capacity to pay. It beggars belief that no enquiry was made for evidence corroborating the father’s assertion as to his income. No subpoena was issued. No notice to produce was filed. There was no call for documents.
He claims total Part N expenditure of $1,279 per week. The Court notes that this includes payments for both his partner and their child. The total weekly payments are modest for a family of three. The Court takes into account his obligation to support his own child, but his contention that his partner, who earns $650 per week only contributes $150 per week towards expenses for food and groceries (Part F) is implausible. Even if it were the case, the Court would find it unreasonable in the circumstances that more of her income is not applied towards the total Part N expenses of the father’s family. The converse of this proposition, of course, is that it is unreasonable of the father to meet the financial needs of his partner in circumstances where she has greater capacity to do so herself, to the detriment of the child the subject of these proceedings. Accordingly, the $317 per week total expenses for his partner is disallowed, thus reducing his total weekly Part N expenses from $1,279 per week to $962 per week. The Court thus finds that his reasonable weekly expenditure is $5,882 per week, which includes the current child support and spousal maintenance.
The father’s capacity to pay, therefore, is an extra $306 per week, taking into account the increased child support paid from 3 January 2023, and the disallowance of the expense for the father’s partner. The father will therefore be ordered to pay periodical spousal maintenance totalling $956 weekly.
The Court notes that the father’s submissions, and his evidence, emphasised the extent of his indebtedness. Doing the best the Court can to understand the financial evidence of the husband, none of the substantial unpaid tax of the father is actually due and presently payable. Even if it were, none of the tax liabilities appear as an item of expense in his Financial Statement. The Court notes that, in any event, he has savings of nearly $18,000.
The orders sought for spousal maintenance by the mother went beyond periodical spousal maintenance of $1,830 weekly to include the cost of health insurance and medical expenses. On the evidence before the Court, there is no capacity to meet the same.
An order will be made in terms of the order for spousal maintenance in the mother’s Amended Application in a Proceeding filed 5 May 2023, but in the amount of $956 weekly.
ORDERS
The parenting orders currently in place will remain, and the parenting orders sought by the mother and the father are dismissed.
Pending further order, the father shall pay to the mother the sum of $956 net per week by way of interim spousal maintenance into a bank account nominated by the mother on Monday 22 May 2023 and thereafter the payments shall be made to the mother each Thursday.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 19 May 2023
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