Neville and Neville

[2017] FamCA 622

FAMILY COURT OF AUSTRALIA

NEVILLE & NEVILLE [2017] FamCA 622

FAMILY LAW – CHILDREN – Final Orders – with whom the children should spend holiday time– where the mother relocated to the US and the children reside in Darwin with the father during school terms by consent– where there is uncertainty as to the mother’s current financial circumstances – where the promotion of a meaningful relationship with the mother is considered– orders made for the children to spend two block periods with the mother during the mid-year and Christmas holidays – mother to pay all travel expenses and the father to contribute $2,500.  

Family Law Act 1975 (Cth) s 60B; 60CC

APPLICANT: Ms Neville

RESPONDENT: Mr Neville

FILE NUMBER: DNC 254 of 2011

DATE DELIVERED: 18 August 2017

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Mr Barry

SOLICITOR FOR THE RESPONDENT: Darwin Family Law

Orders

1. That the order made on 27 April 2017 be discharged.

2. That the parties have equal shared parental responsibility for the children K born … 2002 and B born … 2004 (“the children”).

3. That during school terms, except as otherwise provided in these orders, the children shall live with the father.

4. That the mother shall spend time with the children as follows:-

   (a)   During odd numbered years for three (3) weeks at the end of second term (or Semester 1) commencing at the beginning of the last week of the term and to include the first two (2) weeks of the June/July holidays;

   (b)  During odd numbered years for the first four (4) weeks of the Christmas school holidays with the children to depart Darwin on or about the Thursday before the holidays commence and to return on or about the fifth Saturday of the Christmas school holidays;

   (c)  In even numbered years for four (4) weeks at the end of second term (or Semester 1) commencing at the beginning of the last week of the term and to include three (3) weeks of the June/July school holidays;

   (d)  In even numbered years for the last three (3) weeks of the Christmas school holidays with the children to depart Darwin on or about the fourth Saturday and to return no later than the Saturday prior to the commencement of school.

5. That the mother shall pay the entire costs of the children’s travel PROVIDED that within forty eight (48) hours of the mother presenting an itinerary for the children in the Christmas school holidays, the father will pay to the mother the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) by electronic funds transfer into a nominated account.

6. That should the mother visit Darwin upon the mother giving the father at least twenty one (21) days’ notice of her intention to do so and unless otherwise agreed, the mother shall spend liberal time with the children including block time of up to four (4) days in a week for a total of four (4) weeks for the duration of any visit.

7. That unless otherwise agreed in writing prior to either party travelling internationally with the children, that party shall purchase comprehensive travel insurance for both medical and associated travel for the children and:-

   (a)Provide the other party with details of that travel insurance and proof of purchase:

   (b)Details of that travel insurance and proof of purchase shall be provided at least fourteen (14) days prior to departure AND FURTHER should those details not be provided the children shall not travel.

8. That should the children travel to the USA unless otherwise agreed between the parties they shall return no later than forty eight (48) hours before school is to commence.

9. That either party may take the children overseas when they are due to spend time with the children on the condition that at least twenty one (21) days prior to departure or unless otherwise agreed in writing the travelling parent shall provide to the other the travel itinerary.

10. That the children shall be at liberty to speak with either parent by telephone at all reasonable times and that the children shall have access to a computer or device with videochat and email connectivity for the purposes of communication.

11. That the parties will keep each other promptly informed as to any emergency, illness or medical concerns in relation to the children and if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately.

12. That the parents will both be entitled to attend any of the children’s school or extra-curricular activities to which parents are ordinarily invited to attend.

13. That each parent shall be entitled to obtain copies of the children’s health-care records and to discuss matters with the children’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

14. That the children shall at all times and for all administrative and like purposes be referred to by the surname of Neville.

15. That neither parent will denigrate the other to or in the hearing of the children and shall refrain from discussing all matters pertaining to disputes of any nature between the parties with or in the hearing of the children.

16. Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within three (3) days of any change.

17. That each parent carry out all necessary actions and sign all necessary documents to obtain/renew both U.S.A and Australian passport for the children, and for the purposes of these orders or unless otherwise agreed to in writing:-

    (a)Both the Australian and U.S.A Passports be held in possession of the parent whose care the children are in;

    (b)Should either party fail to sign all necessary documentation for the renewal of the passport, a Registrar of the Court, upon proof by affidavit of such failure, is appointed pursuant to section 106A of the Family Law Act to execute any such documents on behalf of the mother and father to give force and effect to this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neville & Neville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 254  of 2011

Ms Neville

Applicant

And

Mr Neville

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 28 October 2016, Ms Neville (“the mother”) sought parenting orders in respect of K born in 2002 (“K”) and B born in 2004 (“B”) collectively (“the children”).  The gravamen of the orders sought by the mother was that during the academic year the children live with their mother in City C, USA and spend nine weeks of “summer vacation” time with Mr Neville (“the father”).

2. On 25 January 2017 the father filed a Response and sought that the parties have equal shared parental responsibility, that the children live with him in Australia and spend time with the mother in the United States of America (“USA”) for two weeks of the mid-year school holidays and four weeks in the Christmas school holidays in 2017, but from 2018:-

   (1)In even numbered years, all of the midyear school holidays, and the second half of Christmas school holidays, and

   (2)In odd numbered years, the third week of the mid-year school holidays, and the first 4 weeks of the Christmas school holidays.

3. On 27 April 2017 the parties reached a consent order summarised as follows:-

   (1)That the parties have equal shared parental responsibility for the children.

   (2)That during school terms the children live with the father.

   (3)That if the parents are in the same location, agreement is reached in respect of Christmas Day, the children’s birthdays, Mother’s Day and Father’s Day.

   (4)That the children spend time with the mother between 4 July and 29 July 2017.

   (5)That if the children travel to the USA they shall return no later than 48 hours before school is to commence.

   (6)That either party is able to travel overseas with the children out of the Commonwealth of Australia.

   (7)General agreement that the parties are to keep each other informed as to significant issues affecting the children’s health.

4. The balance of matters in dispute were adjourned for hearing to 14 August 2017 in the Darwin Circuit.  Orders were made for the parties to file an Amended Application, Response and Financial Statement.

5. Leave was given for the mother to attend the proceedings by telephone from her home in the USA.

6. The mother left Australia in November 2016 and took up residence in the USA.  The children were left in the care of the father.  The Child Responsive Memorandum of 2 February 2017 was apparently influential on the parties in reaching the substantive agreement reflected in the consent orders.

7. By reference to the “evaluation” component of the memorandum, the following appears:-

   39.There appeared to be a significant disparateness or disjunct between the presentation of the children and their current care arrangements in the care of their father and stepmother, and the presentation of the mother which emphasised the emotional neglect and parenting neglect as well by the father.

   40.The presentation of the children was consistent with a conclusion that they are well cared for in their current arrangement.

   41.Without knowing the extent to which any of the mother’s allegations about the father’s behaviour in the past and present may be true, a difficulty in regards to the parents’ relationship appeared to be that the mother, in regard to the children, perceived the father in such a negative way that that (sic) there was effectively a tendency for her to inevitably see the need to rescue the children from his care, and this view seemed at odds with the children’s presentation.  The children were both in their own ways enthusiastic and positive about their lives with their father.

   42.There was no indication that either of the children are significantly influenced by a parent in a way that would be detrimental to them, and it is concluded that significant weight should be ascribed to the views of each of these two children.

8. Both children indicated a clear preference to live with their father and spend two four week blocks of time in the USA with their mother.

9. At the date of hearing K was 15 years of age and B was 13 years of age.

10. As ordered the mother filed an Amended Application on 14 June 2017 and the father filed an Amended Response on 20 July 2017.

11. The parties have now agreed two further following orders:-

    ·That the mother visit Darwin upon the mother giving the father at least 21 days’ notice, unless otherwise agreed between the parties may spend liberal time with the children, and further that time shall include block time of up to four days in a week for a total for four weeks for the duration of any visit to Darwin by the mother.

    ·That unless otherwise agreed in writing, prior to either party travelling internationally with the children, that both shall purchase comprehensive travel insurance (both medical and associated travel) for the children and:-

    (i)provide the other party with details of that travel insurance and proof of purchase, and

    (ii)details of that travel insurance and proof of purchase shall be provided at least 14 days prior to departure and should those details not be provided the children shall not travel.

ORDERS SOUGHT BY THE PARTIES

1. The mother seeks the following final orders:-

   (1)That the orders by consent of 27 April 2017 be finalised (included in the final orders).

   (2)That during odd-numbered years the children shall spend the 6 week December/January school holidays with the mother.

   (3)That during even numbered years, the children shall spend the first 3 weeks of the December/January school holidays with the father and the remaining 3 weeks with the mother.

   (4)That each year, the children shall spend the last week of Semester One plus the 3 week June/July school holidays with the mother.

   (5)That the father shall purchase per year until [B] is 18, a return plane ticket from Darwin to [City C] for both children for the December school holiday time with the mother.

2. The father sought orders in his Amended Response as follows:-

   (1)That the orders of 27 April 2017 be discharged and incorporated in the further orders of the Court.

   (2)That no order be made in relation to the payment of flights for the children to spend time with the mother in the USA.

   (3)That during school terms, except as otherwise provided in these orders, the children shall live with the father.

   (4)That the mother shall spend the following time with the children:-

   (a)In odd numbered years:-

   (i)The 1st week of the school holidays at the end of Term 1;

   (ii)All of the 3 week school holidays at the end of Term 2 with the children to depart Darwin the Thursday before the holidays commence and return to Darwin no later than the Saturday prior to the commencement of school;

   (iii)All of the 2 week school holidays at the end of Term 3 with the children to depart Darwin the Thursday before the holidays commence and to return to Darwin no later than Saturday prior to the commencement of school;

   (iv)The first 4 weeks of the Christmas school holidays with the children to depart Darwin the Thursday before the holidays commence and return to Darwin on the 5^th Saturday of the school holidays.

   (b)In even numbered years:-

   (i)The 1st week of the school holidays at the end of Term 2;

   (ii)None of the 3 week school holidays at the end of Term 2;

   (iii)All of the 2 week school holidays at the end of Term 3 with the children to depart Darwin the Thursday before the holidays commence and to return to Darwin no later than the Saturday prior to the commencement of school;

   (iv)The last 3 weeks of the Christmas school holidays with the children to depart Darwin on the 4th Saturday of the school holidays and the children to return to Darwin no later than the Saturday prior to the commencement of school.

   (5)The mother is restrained and an injunction do issue restraining the mother from pressuring the children to reside with her in the USA and further that the mother shall do all acts and things to prevent her relatives from pressuring the children to reside with her in the USA.

3. I indicated at the commencement of the proceedings that I was unlikely to make an order restraining the mother from pressuring the children to reside with her in the USA in circumstances where I do not consider it likely that the order could be the subject of effective enforcement.

4. The catalyst for the proposed order is the father’s belief that the mother is attempting to influence the children together with her apparent inability to accept that the children are not at risk in his care.

5. In evidence the mother was frank in asserting her position that she would always promote to the children that they are welcome to reside with her in a loving home environment.

6. The children appear highly attuned to their mother’s attitude by reference to the following extracts from the Child Responsive Memorandum:-

   25.[K] expressed his view clearly in regard to his living arrangements, as that he wishes to stay in Darwin.

   …

   28.[B] said, “I love to see my mum happy, and for her, being in America she’s happy.  I wanted her to go, I knew she’d be happier there”.

   29.[B] said candidly, “In America, I was saying to mum I wanted to be there”, and went on to say “But back here, it’s really good here”.  Her comments continued to express her sense that she is very immersed in her life in Darwin, mentioning her dog [DD] and her father and stepmother and [K].

7. Notwithstanding the issue being raised in the current proceedings, the parties agreed to the following order on 27 April 2017:-

   12.That neither party will denigrate the other to, or in the hearing of the children and shall refrain from discussing all matters pertaining to disputes of any nature between the parties with or in the hearing of the children.

DOCUMENTS RELIED UPON

1. The mother relied upon the following documents:-

   (1)Amended Application filed 14 June 2017.

   (2)Affidavit of mother filed 14 June 2017.

   (3)Financial Statement of mother filed 14 June 2017.

2. The father relied upon the following documents:-

   (1)Amended Response filed 20 July 2017.

   (2)Affidavit of father filed 20 July 2017.

   (3)Financial Statement of father filed 20 July 2017.

ISSUES IN DISPUTE

1. The mother has indicated that she is unlikely to spend time with the children in the holidays at the end of first and third terms.  She argues that the periods are too short (not longer than two weeks) as distinct from the extended three week holiday period at the conclusion of second terms.  Moreover, her experience working in the Northern Territory is such that she considers the last week of second terms is not academically productive, whereas the last week of the first and third terms are periods of active academic assessment.

2. Accordingly, the mother has a realistic expectation that the children would spend two extended periods with her in the USA to coincide with the mid-year and December/January holiday periods.

3. She offers to pay the travel expenses for the children for one of those periods, but she seeks that the father pay the travel expenses for the December/January holidays.

4. There is some evidence that the travel costs total about $4,000 for the children to travel mid-year, but the cost rises to $6,000 for travel in December and January.

5. The husband seeks that he be relieved from any obligation to contribute towards the cost of the children’s travel to see their mother.

6. The mother conceded that the children do not wish to spend the entirety of their Christmas school holidays with her in the USA.  She agrees that subject to any arrangement based upon an agreement between the parties that would reflect the children’s wishes, the maximum time that the children should spend with her is four weeks. 

7. By considering the separate proposals of the parties and bringing to account the mother’s concession, it appears that in odd numbered years an order should be made that the children spend four weeks in the December/January school holidays with the mother and in even numbered years the period should be reduced to three weeks.

8. There seems to be good sense in the arrangement being alternating.

9. The focus therefore is a consideration of the orders to be made if any for the children to spend time with their mother for a period comprising the last week of the second school term and the three week holiday period.

PREVIOUS ORDERS

1. During the proceedings the mother tendered a proposed itinerary for the children to travel to the USA departing 13 December 2017 and returning 24 January 2018.  The anticipated cost was $5,798.

2. The background to the mother presenting an itinerary to the father is considered by reference to orders made on 29 November 2013 and amended to reflect final orders made on 12 September 2014.

3. Order 5(a) of orders made 29 November 2013 provide:-

   5.During the mid-year school holidays the children shall live with each of the parties as follows:-

   (a)in odd numbered years with the father for the first half of the school holidays and with the mother for the second half of the school holidays;

   (b)in even numbered years with the mother for the entirety of the school holidays;

   (c)unless otherwise agreed, the first half of the mid-year school holiday period commencing when school finishes on the last day of term 2 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am on the first day of term 3; and

   6.During the Christmas school holidays the children shall live with each of the parties as follows:-

   (a) in odd numbered years with the mother for the entirety of the Christmas school holidays;

   (b)in even numbered years with the father for the first half and with the mother for the second half of the Christmas school holidays;

   (c )unless otherwise agreed the first half of the Christmas school holiday period commences when school finishes on the last day of term 4 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am and on the first day of term 1 in the following year;

   (d)…
        

1. Order 2 of the orders made 12 September 2014 provide that the children be permitted to travel to the USA in accordance with order 5(a) or (b) and 6(a) or (b) in each year on the following basis:-

   (a)…

   (b)That within 48 hours of receipt from the Mother of the proposed itinerary pursuant to 7(a) herein, the Father shall notify the Mother in writing as to the following:-

   (i)That he agrees to the proposed itinerary and within 48 hours of receipt of the itinerary pursuant to 7(a) pay the costs of the children’s travel; or

   (ii)Provide the Mother in writing alternative flights available either by route, carrier or cost at or about the same date of intended travel;

   (c)…

   (d)In the event of the parties being unable to reach an agreement as to the flight, route or date for travel, the children shall travel with the Mother on the flight and route determined at the sole election of the Mother.

   (e)The Father shall pay for a period of four years both children’s return air tickets from Darwin to [City C] and for a further period until the child [B] turns 16 years of age one return ticket from Darwin to [City C].

   (f)The payment by the father pursuant to 7(e) shall be paid within 48 hours of the mother notifying the father either pursuant to 7(a) or 7(d) and providing the proposed itinerary.

2. The mother has an expectation that the orders of 12 September 2014 enable her to submit the itinerary of proposed travel to the USA in December 2017 (Exhibit “1”) and that within 48 hours of doing so the father will pay the costs of same.

3. Whilst it must be correct that the orders of 12 September 2014 operate until further order, there is no agreement between the parties that any orders made will only operate from 2018 after the December/January school holidays.

LEGAL PRINCIPLES

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child or children as the paramount consideration. The best interests test is met by the application of the objections of s 60B(1).

2. I am cognisant of the primary considerations and additional considerations with respect to the matters set out in s 60CC(2) and (3).

3. Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to the matters set out in s 61DA (if relevant) which would rebut the presumption. If the presumption is rebutted then the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time and if not, substantial and significant time. The test is whether the order would be in the best interests of the child and reasonably practicable.

4. The parties have agreed that they should each have equal shared parental responsibility with respect to the children.  They have also agreed substantive orders which provide for the children to live with the father and spend time with the mother.  The parameters of the dispute are clearly enunciated and well understood.

5. The matters to be determined are narrow.

6. Accordingly, I propose to adopt the following approach:-

   (1)To give consideration to the proposals put by each of the parties as they were identified and presented to Court;

   (2)Have regard to the objects expressed in s 60B(1) and underlying principles of s 60B(2);

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child or children from physical or psychological harm;

   (5)Have regard to additional considerations under s 60CC(3);

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

APPLICATION OF THE LEGAL PRINCIPLES

1. There is no evidence that requires the Court to consider the need to protect the children from any physical or psychological harm.  It is not suggested by either party in the current proceedings that the children or either of them are at risk.  There is no challenge by the mother to the children living primarily with the father.  The focus of the proceedings is the extent of time that the children will spend with the mother.  The issues in dispute are further narrowed by the mother’s concession that it is unlikely at least for the foreseeable future that she would return to Australia to spend time with the children and her decision that even though time is offered by the father for the children to spend time with the mother in the USA at the end of first and third terms, the short duration of the holidays was such that the mother did not consider it would be fair for the children to engage in extensive travel when the overall period is confined to two weeks or less.

Meaningful relationship

1. By reference to the Child Inclusive Memorandum and the evidence of the parties, it is important that the children spend significant time with their mother.  There is no opposition to the children travelling to the USA, but on the mother’s case the only two periods in the year where there would be sufficient opportunity for time to be taken would be during the long mid-year break and during the December/January Christmas school holiday period.

2. There is now little disagreement as to the arrangements during the Christmas school holidays.  I propose to order that in one year the children will spend four weeks of the Christmas holiday period with the mother and in the next year the period will be three weeks.  I propose to alternate for the mother to take her time in the first half of the holidays in one year and in the second half the following year.

3. It should be remembered that K will be 18 years of age on 2 July 2020.  B will be 16 years of age.  I suspect that the arrangements for the children to spend time with their mother are likely to be significantly influenced by the wishes of the children rather than the parties.

4. The father opposes the children spending time with the mother in the mid-year holiday period.  His evidence is that the weather in Darwin is conducive to outdoor activities and it is during that long holiday break that a practice has developed for the father and the children to go camping.  There is some contention between the parties as to whether the father is as committed to camping as he promotes and the mother argues that when she lived in Darwin she was the promoter of camping and other outdoor activities.

5. The mother further submits that the children live with the father for the majority of the year and even now the high water mark of the mother’s case is that the children would spend seven or eight weeks with her and the balance of the year with the father.

6. It is important that the children maintain a meaningful relationship with their mother.  The parties concede the importance of the relationship by their consent to equal shared parental responsibility.  It is reasonable that the children spend as much time as is practicable with their mother to enable her to share in their progress and development.

7. There is some suggestion in the Child Responsive Memorandum that at some stage B may contemplate spending a more significant period of time in the USA.

8. Whilst the father may argue that the predicament in which the parties and children find themselves is as a result of the mother’s decision to leave Australia and return to the USA, the matter cannot be decided by attributing blame but rather, by considering what is in the best interests of the children.

9. The children are keen to spend time with their mother but remain living primarily with their father in Australia.  I accept the mother’s argument that to require the children to travel to the USA at the end of first and third term holidays may well be onerous and detract from the benefit that should result from spending time with their mother.

10. Whilst I accept that the father is genuine in the activities in which he considers would benefit the children in the mid-year holiday period, the evidence supports the finding that the preference of the father should be subservient to orders that promote and maintain the relationship between the mother and the children.

11. Accordingly, I consider that the children’s interests are best served by them spending block time with their mother in the mid-year holiday period.  The mother seeks that the children leave school in the week leading up to the holidays.  Whilst it is not desirable that children should miss out on school, subject to appropriate arrangements being made, I consider that the benefits to the children of spending meaningful time with their mother outweighs any detriment in missing out on school during the last week of the school term.

12. I propose however to order that in one year the children will spend four weeks with the mother during the mid-year holiday period (including the last week of school term), but in the next year they will spend three weeks with her (including the last week of school term) and the balance of the mid-year holidays with the father.

Children’s wishes

1. The only evidence of the children’s wishes and views are as set out in the Child Responsive Memorandum.  It is however a powerful reflection of the strength of the relationship between the children and their mother.  Subject to it being practicable and financially viable, there is nothing from the children to suggest that the general position of the mother is problematic.  The evidence confirms that the children spent the July holiday period with their mother without any difficulty, issue or complaint being raised by either party or importantly, the children.

Is the proposed order practicable?

1. The central issue is the extent to which the parties are required to contribute towards the cost of the children’s travel.

2. Whilst the evidence is scant, it is reasonable to find that the costs of the children’s travel is about $4,000 for the mid-year period and about $6,000 for the December/January holiday period.

3. The mother concedes that she should be responsible for one period and preferably the cheaper travel costs associated with the mid-year holiday time.  She wants the father to pay for the Christmas holiday period travel.

4. The father argues that the mother should be responsible for all costs of travel.  There is a dispute at present as to the extent of child support that the mother currently pays.  It appears uncontroversial that there are child support arrears of in excess of $1,000 and that the average child support currently being paid by the mother is about $11 per week.

5. The father’s financial statement shows that whilst his income from his employment is substantial in the sum of $4,595 inclusive of rent from an investment property, his total personal expenditure is $4,505.  The Part N weekly expenses are unexceptional save and except an amount of $150 attributed to “children’s activities including their hobbies”.  The parties concede that the children have expensive hobbies and extra-curricular activities involving ownership of horses, other animals and more energetic outdoor activities.  The mother’s argument is that some of that expenditure could be reduced in preference to the more desirable outcome of facilitating the children spending time with their mother.  The father is not in agreement with the mother’s position and asserts that the children gain considerable enjoyment from the expenditure.

6. A further issue is the evidence that B is currently undergoing extensive orthodontic treatment.  The orthodontic plan has commenced and the father asserts that the future costs over the next 12 to 18 months will be about $5,500.  Whilst there is apparently a surplus of $90 per week, this will be predominantly utilised on unexpected expenses, but significantly the child’s orthodontic expenses.

7. The father’s overall financial position is poor with the total value of property listed at $619,000 and the total of his liabilities being $741,000.  He is possessed of a significant superannuation entitlement.  This is not a resource that he is able to readily draw upon.

8. The mother relies upon her Financial Statement filed 14 June 2017.  The average weekly income for the mother is $587 per week derived from her part time employment.

9. Of recent date the mother has obtained a contract for three months and her evidence is that her income is $3,500 net per month.

10. Whilst there is some uncertainty as to the mother’s future circumstances, it is her evidence that in September 2017 she is hopeful of obtaining secure employment and it is reasonable to assume the income she receives will not be dissimilar to that received during the recent contract period.

11. Whilst her future employment will be remunerative, it is unlikely to cover holiday periods which amount to about 12 weeks a year.

12. Nonetheless, the mother concedes that she will have both an obligation but also an intention to pay child support.  There is no assessment of child support, but she expects the assessment to be between $200 and $400 per month.

13. The father is doubtful as to the mother’s intentions in respect to child support.  He submits that the mother’s track record has been poor in this regard and he is not confident that any child support will be paid.  Since the mother’s departure to the USA, it is uncontroversial that the expenses in relation to the children both necessary and discretionary have been met by the father without significant contribution by the mother.

14. The mother will also have an entitlement to consider making an application for departure from administrative assessment in respect of the reasonable costs of the children spending time with her.

15. The mother was asked about her marital status and admitted that she had re-partnered and was now living in her partner’s home.  There is no reference in her financial statement to the circumstances of her partner, his income or the arrangement that exists between them in terms of the day to day living expenses incurred.

16. The mother did not include a Part N Schedule to her document and their remains significant uncertainty as to the mother’s current financial position.  When asked to provide evidence as to her partner’s income and the extent to which he provides financial support to her, the mother refused to answer any questions on the topic.

17. The lack of disclosure in relation to her current circumstances and those of her partner is not to be considered as a mere error or omission but rather, a deliberate non-disclosure.

18. It was difficult to assess the weight that should be placed upon the mother’s evidence in relation to her current financial position, but on balance I am able to find the following:-

    ·That the mother will obtain ongoing and well remunerated employment.

    ·That the mother currently resides in her partner’s home.

    ·That she receives significant financial support from her partner, certainly in relation to the provision of household expenses associated with her occupancy of her partner’s home.

    ·That the mother will have a substantial child support obligation.

    ·That whilst the mother concedes that she will have a child support liability and intends to meet that liability, there is no certainty that child support will be paid.

19. Given my finding that it is important for the children to spend two substantial block periods with their mother in each calendar year, I consider that given her non-disclosure, but also her enhanced financial position arising from her anticipated employment, it is reasonable that the mother pay the costs of the children’s airfare between Australia and the USA, but that the father be required to contribute the sum of $2,500 to assist in the travel costs during the December/January holiday period.

20. The financial impost on the father will be effectively $50 per week and given my finding that it is important for the children to spend two periods per calendar year with the mother in the USA, it is expenditure that the father is able to contribute without significant derogation from his ability to provide appropriately for the children.

21. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 18 August 2017.

Associate: 

Date:  18 August 2017