O'Loughlin & O'Loughlin (No. 2) - [2007] FamCA 1546

FAMILY COURT OF AUSTRALIA

O'LOUGHLIN & O'LOUGHLIN (NO. 2)

[2007] FamCA 1546

FAMILY LAW – CHILDREN – With whom a child lives – Wife relocated with child unilaterally – Need to protect child from high level of conflict between parties – Child not yet affected due to young age – Allegations of domestic violence – Abusive and aggressive behaviour following separation by both parties – Need for parties to prioritise child’s needs – Child has close relationship with both parties – Whether equal time appropriate where would constitute significant change – Equal time not in child’s best interests given conflict and lack of communication, cooperation and trust between parties – Child to live with wife and spend substantial and significant time with husband

FAMILY LAW – CHILD SUPPORT – Application seeking departure from administrative assessment and substitution order – Departure from assessed amount of child support husband to pay until child starts school – Husband to pay all child’s school fees and expenses, to be credited against administrative assessment and count for 100% of annual rate of child support payable

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA & 65DAA

Child Support (Assessment) Act (Cth) 1989 ss 116, 117, 123, 124 & 125

Forck & Thomas (1993) FLC 92-372
Padgen & Padgen (1991) FLC 92-321
G & G [2000] FamCA 12
Sheahan & Sheahan (1993) FLC 92-375
Savery & Savery (1990) FLC 92-131

APPLICANT:

Mr O’Loughlin

RESPONDENT:

Ms O’Loughlin

INDEPENDENT CHILDREN’S LAWYER:

Lehmann Featherstone

FILE NUMBER:

TVF

329

2005

DATE DELIVERED:

17 December 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Cairns

JUDGMENT OF:

Strickland J

HEARING DATE:

28-31 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Willis

SOLICITOR FOR THE APPLICANT:

Williams Graham Carman

COUNSEL FOR THE RESPONDENT:

Mrs Pack SC

SOLICITOR FOR THE RESPONDENT:

Cope Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Benson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lehmann Featherstone

ORDERS

Child Issues

That the husband and the wife have equal shared parental responsibility for the child … born … July 2003.
That the said child live with the wife.
That the said child spend time with the husband as follows:
(a)Until the said child commences her preparatory year at school in 2009;
(i)from 4:00pm Friday until 4:00pm Monday each alternate weekend with the handover on the Friday to take place at Relationships Australia, …, and the handover at 4:00pm Monday to take place at ABC Learning Centre in S;
(ii)from 9:00am Monday until 9:00am Tuesday each alternate week immediately following the weekend when the child lives with the mother with handover to occur at the commencement and the conclusion of that period at the ABC Learning Centre in S;
(iii)during one half of each school holiday period on a week and week about basis with handovers to take place at 9:00am Saturday;
(iv)from 4:00pm Christmas Eve until 4:00pm Christmas Day in 2007 with handovers at the commencement and conclusion of that period to take place at McDonalds in S;
(v)from 4:00pm Christmas Day until 4:00pm Boxing Day in 2008 with handovers at the commencement and conclusion of that period to take place at McDonalds in S;
(vi)when the Easter holiday period does not coincide with a school holiday period, from 4:00pm Easter Thursday until 10:00am Easter Sunday with handover at the commencement of that period to take place at ABC Learning Centre in S and handover at the conclusion of that period to take place at McDonalds in S;
(vii)from 9:00am until 2:00pm on the child’s birthday in each year with handovers at the commencement and conclusion of that period to take place at McDonalds in S unless the child is attending at the ABC Learning Centre on that day in which case handovers at the commencement and conclusion of that period take place at that learning centre;
(viii)from 9:00am until 4:00pm on the husband’s birthday in each year with handovers at the commencement and conclusion of that period to take place at McDonalds in S unless the child is attending at the ABC Learning Centre in S on that day in which case handovers at the commencement and conclusion of that period take place at that learning centre;
(ix)in the event that the child is due to spend time with the husband pursuant to these orders on the wife’s birthday in each year then the same be suspended from 9:00am to 4:00pm on that day.
(b)Upon the child commencing her preparatory year at school in 2009:
(i)each alternate weekend commencing from the conclusion of the school day on Friday until the commencement on the Monday on the basis that the husband collect the child from school on Friday and deliver her to school on Monday PROVIDED THAT if the child is not attending school on either of those days then handover shall take place at McDonalds in S;
(j)from the conclusion of the school day on Monday until the commencement of the school day on Tuesday in the intervening week with the husband to collect the child from the school on Monday and return the child to the school on Tuesday;
(ii)for the first half of all Gazetted school holiday periods in 2009 and in each alternate year thereafter PROVIDED THAT the child shall live with the wife from 4:00pm Christmas Day to 4:00pm Boxing Day in each year when the child spends time with the husband for the first half of the Christmas school holiday period;
(iii)for the second half of all Gazetted school holiday periods in 2010 and in each alternate year thereafter PROVIDED THAT the child shall also spend time with the husband from 4:00pm Christmas Day to 4:00pm Boxing Day in each year when the child is spending the second half of the Christmas school holiday period with the husband;
(iv)in the event that the Easter period does not coincide with a Gazetted school holiday period then for one half of such period at times and at such place of handover as agreed between the parties;
(v)on the child’s birthday in each year, if a school day for two hours after school with the husband to collect the child from school and return the child to the wife at McDonalds in S but if not on a school day from 9:00am to 2:00pm on that day with handovers at the commencement and conclusion of that period at McDonalds in S;
(vi)on the husband’s birthday in each year, on a school day for two hours after school with the husband to collect the child from school and return the child to the wife at McDonalds in S, but if not on a school day from 9:00am to 4:00pm on that day with handovers at the commencement and conclusion of that period at McDonalds in S;
(vii)in the event that the child is due to spend time with the husband pursuant to these orders on the wife’s birthday in each year then the same be suspended from 9:00am to 4:00pm on that day.
That the said child shall, until she is due to commence her preparatory year at school in 2009, attend at ABC Learning Centre in S at times nominated by the mother PROVIDED THAT no such time is to coincide with any time when the child is to spend time with the husband pursuant to these orders.
The said child shall attend the R School as from her preparatory year in 2009 and each party shall do all acts and things and sign all such documents as may be necessary to ensure her attendance at that school PROVIDED THAT the child’s continued attendance at that school is always subject to the husband paying all school fees and other expenses at that school when such fees and expenses fall due for payment.
In the event that the child is due to spend time with the husband pursuant to these orders on Mother’s Day in any year then that time is suspended from 9:00am until 5:00pm on that day.
In the event that the child is due to be living with the wife pursuant to these orders on Father’s Day in any year then the child is to spend time with the husband from 9:00am until 5:00pm on that day with the handover of the child to take place at McDonalds [in S].
Paragraphs (3)(a)(i) and (ii), and (3)(b)(i) and (ii) be suspended during any school holiday period.
Each party do keep the other advised in writing of their residential address, landline and mobile telephone numbers at all times.
Each party do keep the other advised in writing of the name and address of any medical practitioner or other health professional consulted by the said child from time to time.
That each party be restrained and an injunction is granted restraining each of them from attending at the residence or place of work of the other of them.
Each party will notify the other forthwith of any medical or health related emergency which impacts on the welfare and care of the said child.
Each party will provide the necessary authorities to enable the other of them to obtain information from any medical practitioner or other health professional consulted by the said child.
Each party is restrained and an injunction is granted restraining each of them from denigrating the other party or any member of their family or permitting the child to remain in the presence of any person when denigrating the other party or any member of their family.
That the husband is restrained and an injunction is granted restraining him from discussing with the said child or any of her teachers, carers, educators and/or medical providers any of the facts or circumstances surrounding the deaths of … [the wife’s family member’s], or any alleged mental distress of the wife as a result of these issues.
Each party shall attend a parenting course conducted by Relationships Australia as soon as is practicable.
That until the child commences her preparatory year at school in 2009 the parties shall use a communication book to inform each other about the child’s care including but not limited to forthcoming activities for the child and health requirements of the child and such communication book shall pass with the child at handovers.
That the husband be at liberty to attend any school function, event or activity to which parents are usually invited.
Each parent shall ensure that the said child attends any scheduled activity for any sport or other extra-curricula activity in which the child participates and/or is enrolled while the child is in their care, whether on a week day or weekend.
Each party is restrained and an injunction is granted restraining each of them from removing the said child from the far north Queensland area for holiday purposes without first providing to the other party at least one month’s written notice of the same, and which notice shall include an itinerary for the proposed travel.

Child Support

That pursuant to Sections 117 and 118 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the husband to the wife for the child … born … July 2003 as follows:
(a)For the period from the date of these orders to 30 January 2009 the annual rate of child support be set at ONE THOUSAND NINE HUNDRED AND TWENTY DOLLARS [$1,920.00] (being the equivalent of ONE HUNDRED AND SIXTY DOLLARS [$160.00] per month);
That pursuant to Section 124 of the Child Support (Assessment) Act 1989 from 31 January 2009 and for so long as the child … born … July 2003 continues to attend R School the husband provide child support for the said child as follows:
(a)The husband pay or caused to be paid within seven [7] days of the wife delivering accounts to the husband:
(i)all school fees incurred as a result of the child’s attendance at R School;
(ii)all costs of school books, school excursions organised by R School and school uniforms required by that school,
and this child support is to be credited against the husband’s liability under any relevant administrative assessment of the child support payable by the husband to the wife that relates to the said period and is to count for 100% of the annual rate of child support payable under any such relevant administrative assessment.

General

That pursuant to Section 62B and Section 65DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: TVF 329 of 2005

MR O’LOUGHLIN

Applicant

And

MS O’LOUGHLIN

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders in relation to the child … born in July 2003. The wife also seeks a departure from the administrative assessment of child support by the Child Support Agency and a substitution order.
At the commencement of the trial the parties were in dispute about property settlement, but they were able to reach agreement and I made orders by consent finalising this issue on 28 May 2007.
The relevant applications are the husband’s Amended Application for Final Orders filed 13 December 2006 and his Form 1B Reply filed 12 February 2007, and the wife’s Amended Response to an Application for Final Orders filed on 17 January 2007.
At the time of the trial, the husband sought the following parenting orders:
“1.    The mother and the father have equal shared parental responsibility for the child […] born on […] July 2003 (“the child”)
2.     The child live with the mother and father on a shared care basis as follows:
(a)     Until the child starts school:-
(i) The child will live three days with the father, the next four days with the mother, the next four days with the father and then three days with the mother with this pattern repeating;
(b)     Once the child starts school:-
(i) The child will live with each of the parents on a week about basis.
6.      [sic] The parent who does not have the child in their care on either the child’s birthday or their own birthday shall spend time with the child as follows:
(a)On a school day for two hours after school with the parent to collect the child from school and return the child to an agreed location.
(b)On a non school day from 9.00am to 2.00pm with changeovers to take place at an agreed location.
7.      Where the child is not in the mother’s care on Mother’s Day then the child will be returned to her care from 9.00am to 5.00pm with the mother to be responsible for collection and return of the child an agreed location [sic].
8.      Where the child is not in the father’s care on Father’s Day then the child will be returned to his care from 9.00am to 5.00pm with the father to be responsible for collection and return of the child to an agreed location.
9.      Until the child commences school the child will spend one half of the school holidays with each parent on a week about basis with changeovers to take place at 9.00am on the Saturday.
10.    Once the child commences school the child shall spend one half of the holidays with each parent with the father to have the first half of the holidays when the child is in prep school and the mother shall have the second half of the holidays and the parents shall alternate each year thereafter, with changeovers to take place at 9.00am Saturday- save and except for the Easter school holidays.
11.    The mother shall notify the father in writing at least one week prior to the Easter school holidays of her proposed date and time for changeover.
12.    Changeovers are to take place at Relationships Australia, or the child’s day care until the commencement of school at which stage changeovers are to take place at the child’s school except in non-school days when changeovers will occur at McDonalds [in S] unless agreed otherwise.
13.    The child will be enrolled at and attend at the [R] School at the […] Campus and each party will do all acts and things and sign all such documents to ensure her attendance at [school] provided that the child’s continued attendance at [school] is subject to the father paying the child’s cost of schooling as and when such costs fall due for payment.
14.    Each party will keep the other advised in writing of their residential address, landline and mobile telephone numbers at all times.
15.    Each party will notify the other forthwith of any medical or health related emergency which impacts on the welfare and care of the child.
16.    Neither party will denigrate the other party (or their families) or permit the child to remain in the presence of hearing of other persons who do so.
17.    Neither party will contact the other party other than in accordance with the terms of these orders or for matters concerning the urgent welfare of the child.
18.    Such further or other orders which this Honourable Court deems fit.”
During the course of her final submission the husband’s counsel indicated that if I was against the husband as to the orders that he sought until the child starts school, then the alternative orders the husband seeks are that the child live with the husband from 4:00pm Friday to 4:00pm Monday on each alternate weekend and from 9:00am Wednesday to 9:00am Friday in the following week. In relation to school holiday periods the husband seeks as an alternative that the child live with him for one half of each school holiday period but on a week and week about basis.
At the time of the trial, the wife sought the following parenting orders:
“1.    That the father and the mother shall have joint parental responsibility for the child […] born […] July 2003 [sic];
2.     That the child live with the mother, [Ms O’Loughlin];
3.     That the child spend time with the Father, [Mr O’Loughlin] as follows:
(i)Until the child commences her formal school in preparatory year:-
(a)From 4.00pm Friday to 4.00pm Monday each alternate weekend with the changeover at 4.00pm Friday to occur at Relationships Australia, […], and the changeover at 4.00pm Monday to occur at ABC Learning Centre [in S];
(b)From 9.00am Monday to 9.00am Tuesday each alternate week immediately following the weekend the child lives with the Mother with changeover to occur at the commencement and conclusion of that period at the ABC Learning Centre [in S];
(c)For two 7 day periods during each year, such weeks not to be taken consecutively, at times as nominated by the Father provided that he shall give to the Mother at least 30 days notice thereof.
The mother shall also be entitled to two 7 day periods during each year, such weeks not to be taken consecutively, at times as nominated by the Mother provided that she shall give to the Father at least 30 days notice thereof and in the event that any of those 7 day periods include times when the child would otherwise spend time with the Father then the Mother shall give the Father make up time as soon as is practicably reasonable.
(d)From 4.00pm on Christmas Eve to 4.00pm on Christmas Day in 2007 with changeovers at the commencement and conclusion of that period to occur at McDonalds [in S];
(e)From 4.00pm on Christmas Day to 4.00pm on Boxing Day in 2008 with changeover at the commencement and conclusion of that period to occur at McDonalds [in S];
(f)From 4.00pm on Easter Thursday to 10.00am on Easter Sunday in 2007 and 2008 with changeover at the commencement of that period at ABC Learning Centre [in S] and changeover at the conclusion of that period at McDonalds [in S];
(g)From 9.00am to 2.00pm on the child’s birthday in each year with changeover at the commencement and conclusion of that period to occur at McDonalds [in S] unless the child is attending at the ABC Learning Centre [in S] on that day in which case changeover shall [sic] at the commencement and conclusion of that period at the ABC Learning Centre [in S];
(h)From 9.00am to 4.00pm on the Father’s birthday in each year with changeover at the commencement and conclusion of that period to occur at McDonalds [in S] unless the child is attending at the Learning Centre [in S] on that day in which case changeover shall at the commencement and conclusion of that period shall occur at the ABC Learning Centre [in S];
(ii) Upon the child commencing her formal education in preparatory year:-
(a)Each alternate weekend commencing from the conclusion of the school day or at 3.00pm whichever is the later each alternate Friday to the commencement of the school day or 9.00am which ever is the later each alternate Monday with changeover to occur at the child’s school and if the child is not attending school on that day then at McDonalds [in S];
(b)For the first half of all gazetted school holiday periods in 2009 and in each alternate year thereafter provided however that the child shall spend time with the Mother from 4.00pm on Christmas Day to 4.00pm on Boxing Day in each year when the child spends time with the Father for the first half of the Christmas school holiday period;
(c)For the second half of the gazetted school holiday periods in 2010 and each alternate year thereafter save and except that the child shall also spend time with the Father from 4.00pm on Christmas Day to 4.00pm on Boxing Day in each year when the child is spending the second half of the school holidays with the Father;
(d)On the child’s birthday in each year, where such birthday falls on a school day, with the period commencing with the Father collecting the child from school on that day, with a changeover at the conclusion of that period at 7pm at McDonalds [in S], or should the child’s birthday not fall on a school day, the child spend time with the Father from 9am to 2pm during that day, with changeovers on the commencement and conclusion of that period at McDonalds [in S];
(e)On the Father’s birthday in each year, where such birthday falls on a school day, with the period commencing with the Father collecting the child from school on that day, to spend time overnight with a changeover at the conclusion of that period by the father returning the child to school for the following day, or should the child’s birthday not fall on a school day, the child spend time with the Father from 9am to 4pm during the day, with changeovers on the commencement and conclusion of that period at McDonald’s [in S] .
4.     That the child shall, until she is of school age, attend at ABC Learning Centre [in S] at times as nominated by the Mother, but not at times when the child is to spend time with the Father pursuant to these orders.
5.     The Father shall not, and is hereby restrained from discussion with the child or any of her teachers, carers, educators and/or medical providers any of the facts and or circumstances surrounding the homicidal deaths of [the wife’s family members], or any alleged mental distress of the Mother as a result of these issues.
6.     Both parents shall enrol in and attend a parenting apart course named “Focus on Kids” run by Relationships Australia prior to the completion of the 2007 calendar year.
7.     That up until such time as the child commences her formal education in preparatory year, the parties shall use a communication book to inform each other about the child’s care including but not limited to forthcoming activities for the child and health requirements of the child and such communication book shall pass with the child at changeovers.
8.     Both parents shall ensure the child attends any scheduled activity for any sport or other extra curricula activity in which she participates and/or is enrolled while the child is in their care, whether on a week day or weekend.
9.     Neither party shall be permitted to temporarily remove the child from the [far north Queensland] locality for holiday purposes without first providing to the other at least 1 month’s written notice of same, which notice shall include an itinerary for the proposed travel and further neither party shall take the child to an overseas country in which it is likely the child will come into contact with un-sanitised drinking water.”

In relation to child support the wife altered her position during the trial and ultimately the orders that she sought were as follows:
7.1“Pursuant to Section 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of the Child Support Agency made on 7 February 2007 with respect to the child […] born […] July 2003 [sic] and that for the period from the date of these orders to 30 January 2009 the annual rate of child support be set at $7,800.00 (being the equivalent of $150.00 per week).”
7.2“That the father pay or cause to be paid within 7 days of the mother delivering accounts to the father:
(i)All school fees incurred as a result of the child’s attendance at [R] School;
(ii)All costs of school books, excursions organised by that school and school uniforms required by that school.
7.3That the total payable by the father pursuant to this order be offset against the annual rate of child support payable by the father under any administrative assessment of child support for the child.”
The husband’s position in relation to child support is that he is prepared to consent to the orders sought in paragraphs 7.2 and 7.3 above, but in relation to the order sought in paragraph 7.1, he opposes the amount specified and says that it should be $160.00 per month.

Factual Background

The husband was born in April 1961 and is now aged 46 years.
The wife was born in February 1972 and is now aged 35 years.
The husband and wife met in December 1995 on a cruise. At that time the husband was living with his first wife in far north Queensland and the wife was living in Melbourne.
In August 1996 the husband’s first wife died in a motor vehicle accident.
The parties commenced a relationship in April 1997. The husband relocated to Melbourne in April/May of 1997. At the time, the wife was employed as a teacher of at a secondary school. According to the wife, the husband was unemployed at this time, having recently sold a business in Queensland.
According to the wife, the parties commenced cohabitation in June 1997 following the husband’s move from Queensland, and in October 1997 they moved from rental accommodation to a property owned by the husband in B, in Victoria’s Gippsland region. The husband contends that the parties did not commence cohabitation until their marriage in January 1999.
In 1998 the parties established “[P Company]” in which they both worked, producing and selling handmade personal products through a retail outlet. In late 1998 the retail section of the business was sold.
The parties married in January 1999 in Victoria. After their marriage, the parties lived in the husband’s property at B.
In February 1999 the parties separated for a period of 6 months, following an argument and incident in which the wife was hit in the nose with a door. The wife moved out of the parties’ home.
The parties resumed cohabitation in August 1999.
The parties established a further business “[E Company]” in 1999/2000. This business subsequently failed.
In 2000 the parties wound down their “[P Company]” business.
In early 2001 the parties purchased the former matrimonial home at H, Queensland and relocated in March 2001, having sold the B property.
The husband and the wife operated a business producing and selling natural products and opened a retail outlet in 2002, “[J Company]”. Before the birth of the child, both parties worked in the business. The wife states she was responsible for the day to day operations of the retail business while the husband manufactured their products.
In July 2003 the parties’ child was born, and she is now aged 4 years. Following the child’s birth the wife stayed at home to care for the child full time.
In September 2003 the wife commenced teaching on a casual basis at TAFE College.
In December 2003 the parties sold the “[J Company]” business. From the time the business was sold until separation, the husband states he manufactured on a limited scale. The wife continued teaching at TAFE.
During 2004 the parties moved out of the property at H while the property was renovated. During the renovations the parties resided in rental accommodation.
In mid 2004 the parties went on a holiday to Malaysia. Upon their return the wife learnt of the disappearance of her family members in Melbourne. The wife subsequently spent time in Melbourne with family during the police investigation, while the husband remained in far north Queensland. It was later discovered the wife’s family members had been murdered by the wife’s uncle.
In December 2004 the parties returned to live in the H property, although the renovations were not yet completed.
The wife states that the parties separated on 29 April 2005. The husband maintains the date of separation was 1 May 2005. The wife left the former matrimonial home with the child and went to reside with her mother and step-father, before moving into rental accommodation in far north Queensland. Following separation, the wife continued to work on a part time casual basis at TAFE.
On 3 May 2005 the wife applied to the Child Support Agency for an assessment.
On 12 May 2005 child support was assessed at $150.58 per month, but then immediately reduced to $21.67 a month because the husband was not working.
In mid 2005 the parties travelled to Melbourne for the trial and sentencing of the wife’s uncle. He was convicted of murdering the wife’s family members.
In October 2005 the wife informed the husband of her intention to move to Cairns.
On 6 October 2005 the husband filed a Form 1 Application for Final Orders seeking orders that the child live with him and have contact with the wife each weekend from 5.00pm Friday to 5.00pm Sunday. The husband also filed an Application in a case on this date seeking interim orders in the same terms.
On 11 October 2005 the husband made an application for a Protection Order in the Magistrates Court. The husband states he did so due to angry and threatening behaviour by the wife.
On 12 October 2005 the wife filed a Form 1A Response to an Application for Final Orders seeking orders that the child live with the her and have contact with the husband from 5.00pm Thursday to 8.00am Friday and 8.30 am to 4.00pm Sunday. The wife also sought orders by way of property settlement.
On 12 October 2005 orders were made by Bryant CJ that during the period of the adjournment the child live with the wife and that the husband have contact with the child from 5.00pm Thursday evening until 8.00am Friday morning and from 8.30am until 4.00pm each Sunday.
On 24 October 2005 Coleman J made orders continuing the orders of 12 October.
In October 2005 the wife moved to rental accommodation in Cairns.
On 17 November 2005 the wife also made an application in the Magistrates Court for a protection order.
In February 2006 mutual protection orders were made by consent, without admissions, in the Magistrates Court at Cairns. The protection orders expire on in February 2008.
On 28 February 2006 Registrar Victoire ordered the preparation of a family report and appointed an Independent Children’s Lawyer to represent the child. The parties were also ordered to attend interviews for the preparation of a psychiatric report.
On 8 March 2006 the husband filed a Form 1B Reply seeking orders for property settlement.
In March 2006 the husband voluntarily increased the amount of child support that he paid to $100.00 per month. He also back-dated these payments to October 2005.
On 10 August 2006 Dr G, psychiatrist, interviewed the parties for the purposes of a psychiatric assessment. Dr G made the following comments in her report dated 22 August 2006:
“At interview ([the husband]) presented as warm, friendly and cooperative. He appeared to be of above average intelligence and was well groomed. There was no disorder of thought or perception. His mood was appropriate. There was no evidence of psychiatric disorder either in his history or mental state examination…
At interview ([the wife]) presented at friendly and cooperative. She was well groomed. She spoke intensely and obviously wanted to get across as much information as possible. Her mood was appropriate and she appeared to be of above average intelligence. There was no disorder of thought or perception.
My understanding is that the sexual abuse by her uncle involved digital penetration. Perusal of the material indicates that she believes that her family was dismissive of the effects of the abuse upon her with the exception of her mother. Also despite some years of counselling the matter appears never to have been reported to the authorities. While she denies that she has ever had a diagnosis of post-traumatic stress disorder, perusal of her Victim Impact Statement dated 10.03.05 indicates that she suffered from intrusive thoughts of her abuser and a preoccupation with his crimes. She experienced lack of trust, feelings of fear and social inhibition and irritability and anger. Her description of her parenting capacity indicates that she believes that it has been diminished. It is my view that she does suffer from post-traumatic stress disorder.”
Further, Dr G concluded as follows:
“OPINION
There are indications, and indeed [the husband] concedes, that prior to the revelation of the murders [the wife] was functioning competently as a parent. She has experienced very significant trauma which has been compounded by a breakdown in her relations with members of her mother’s family and it is my view that there is a probability that her very stressful experiences contributed to the marital breakdown. Her childhood indicates difficulty with male role models prior to the age of 15.
[The husband] has experienced significant bereavement and his account of his childhood indicates that he also had an abusive male role model with a significant family history of alcohol abuse and at least one suicide. However, at interview he did not present as suffering from a psychiatric disorder.
The situation is obviously complex and at the stage of my assessment I formed the view that both parties were continuing to work through the very difficult dynamics involved. Obviously my report is limited but I would recommend that both parties receive counselling with the focus being the minimisation of trauma to [the child] and support for both parents in parenting issues. Whilst I am not in a position to comment on the allegations and counter allegations made by the parties it appears that the child has a significant attachment to both and consequently would benefit from frequent contact with both parents so long as this could be achieved without continuing conflict between them. At this stage it would be advisable for changeovers to involve a third party, preferably a contact centre.”
On 14 August 2006 Ms T, Social Worker, Counsellor and Family Therapist, interviewed the parties for the preparation of a family report. Ms T provided her report on 1 September 2006 and made the following recommendations:
45.1The child continue to live with her mother.
45.2The child continue to visit her father in D, far north Queensland, overnight once a week, commencing early on the first day and concluding on the following evening.
45.3At the appropriate time, the child’s visits with her father should be changed to every second weekend. At this time the parents could trial the child’s visits to include 2 days and 2 nights in D. This could be further increased until she is going from Friday afternoon to Monday mornings each alternate weekend.
45.4That the parents share the travelling between D and Cairns and handovers take place at either the child’s Daycare or Relationships Australia in Cairns. Pickups and drop offs in D could be made through the child’s day care there. At the present time, it is important to separate the parents by distance and frequency, and thereby to reduce the opportunity for conflict in front of the child.
On 13 December 2006 the husband filed a Form 1 Amended Application for final orders seeking shared care of the child, or in the alternative that the child live with him and spend significant time with the wife. He also sought orders relating to special events and school holidays and property orders.
In 2007 the wife began working on Monday and Wednesday of each week.
On 17 January 2007 the wife filed a Form 1A Response to an Application for final orders seeking orders that the child live with the wife and spend time with the husband. The wife sought orders for property settlement and a departure from the administrative assessment of the Child Support Agency made on 25 June 2006 pursuant to s 115 of the Child Support (Assessment Act) 1989.
On 12 February 2007 the husband filed a Form 1B Reply seeking the dismissal of the wife’s application for capitalised Child Support.
On 28 May 2007 I made final orders by consent in relation to property settlement.
On 30 May 2007 I granted the wife leave to amend her Amended Response filed 17 January 2007 in relation to the child support orders sought to seek a departure order and a lump sum payment.
At the conclusion of the trial on 31 May 2007 I made interim parenting orders by consent pending delivery of my judgment in this matter. Pursuant to those orders, until the child commences preparatory school, the child is to live with the wife, and spend time with the husband from 4.00pm Friday to 4.00pm Monday each alternate weekend, from 9.00am Monday to 9.00am Tuesday each alternate week following the weekend the child spends with the wife, and for two seven day periods each year. The orders also made provision for special occasions, and at the request of the husband’s counsel I noted that he would be increasing his monthly child support from $100.00 to $160.00.

The current circumstances of the parties

The wife

The wife and the child live in rented accommodation in Cairns. There was no evidence of what this accommodation comprises but the husband did not raise any issue about this. Indeed the husband is not aware of the wife’s address and the wife does not wish to reveal the same to him.
The wife is employed on a casual basis as a teacher. She works two days per week and earns $500.00 per week. In addition, she receives a parenting payment of $123.00 per week and a family tax benefit and rental assistance of $164.00 per week.
At the time of the trial the child was attending the ABC Learning Centre each Wednesday and each alternate Monday. She spent time with the husband on the other Monday.
The child is involved in a number of activities, for example she has a swimming class each week, she attends a kindy gym class each week, and she is engaged in a gymnastics program each Tuesday and Thursday morning. She attends Sunday school on the Sunday when she is with the wife and on each third Saturday she spends three hours at a kids’ club at the wife’s church.
At the time of the trial the husband was paying child support of $100.00 per month but his counsel told me that he would be increasing that to $160.00 per month as from 12 June 2007. This is a voluntary payment given that the actual child support assessment is $27.75 per month.
The wife is undertaking a Diploma course. She started this course in 2005 and she is doing it part-time. The wife has also re-established her own business, trading as “[W Company]”. This business is in its infancy and the wife is yet to make a profit.
The wife has commenced to attend for counselling at a Therapy Centre. The wife was also considering arranging counselling there for the child, but it is now agreed that that is inappropriate and unnecessary.

The husband

The husband lives in the former matrimonial home at H. It is a large two level home on one acre of land which is fully fenced. The child has her own bedroom and play area and the home provides suitable accommodation and facilities for her.
The husband commenced a business in his local area in December 2006. The business is operated through a company F Pty Ltd trading as “[C] Services”. He pays himself a wage of $275.00 per week from this business when he can. He says though that he would earn approximately $5,000.00 before tax this year up to the date of the trial.
The husband also receives a small income of approximately $2,000.00 per year from his previous business of “[J Company]”.
The husband also receives a family tax benefit of $27.44 per week.

The issues in dispute

Child issues

The primary issue is whether there should be equal shared parenting or whether the child should live primarily with the wife and spend time with the husband. The husband wants for former and the wife the latter.
In the context of this primary dispute the following issues have emerged:
65.1Was the wife the primary caregiver to the child prior to separation? The wife says that she was and that the husband did very little my way of caring for the child. The husband denies this and says that he played an extensive role in the care of the child, and in particular that his role was at least equal to that of the wife.
65.2The care of the child when the wife is working. The wife has been placing the child in child care on the days that she works but the husband says that he is available to care for the child at these times. However, despite this being a long standing issue between the parties, during her cross examination the wife indicated that the husband could have the care of the child at some of these times until the child commences school. She did say though that it is beneficial to the child to attend day care to allow her to play and socialise with other children given that she is an only child. The husband in his evidence seemed to accept this and thus it seems that this is no longer an issue in dispute.
65.3What school should the child attend? Prior to separation the parties enrolled the child at R School, and the husband still wishes her to attend that school. The wife has now enrolled her in a different school, namely L School, but during the trial the wife indicated that if the husband met all the school fees and other costs the child could still attend R School. The husband agreed to do this and thus there is no longer any dispute about this either.
65.4The husband claimed that the emotional effect on the wife of the murder of her family members, and her involvement in the subsequent trial, was significant, and as a result she was unable to care for the child. The wife denied this. However, at some time prior to the commencement of the trial the husband accepted that the wife had overcome any difficulties that she had in this regard and that she was able to properly care for the child. Thus, again this is not an issue that I need to address.
65.5Allied to the previous issue is the claim by the wife that the husband has continually brought up the emotional effect on her of the murders and the subsequent events in an attempt to undermine her role as a parent and adversely affect her relationship with the child. The husband denies that he has done this.
65.6The wife says that the husband has always been abusive towards her, physically, verbally and emotionally. The husband denies this claim and he in turn says that the wife was not only manipulative but has been violent to him on occasions. Both parties took out protection orders after separation.
65.7The husband wants to play an equal role in the child’s life and says that the wife wants to in effect be the child’s sole parent. The wife denies this but does not accept that equal shared care is in the child’s best interests primarily because of the high level of conflict that exists between the parents, but also because she is concerned about the safety of the former matrimonial home and that the child will be exposed to the husband’s poor behaviour and mood swings.

Child support

The wife in effect seeks that until 30 January 2009 the husband pay child support at the rate of $150.00 per week and thereafter he pay all the child’s school fees and other costs. The husband says that he can increase his payment from $100.00 per month to $160.00, and he is prepared to pay all of the child’s school fees and other costs from 2009 onwards. Thus the issue is whether there should be a departure order in the sum sought by the wife or as proposed by the husband. The wife says that she needs $150.00 per week to assist in meeting the child’s expenses, but the husband says in effect that he cannot afford to pay any more than $160.00 per month.

The principles to be applied to the issues in dispute

Child issues

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Act relating to children are:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

Child support

Departure Order

The following sections of the Child Support (Assessment) Act 1989 are those sections which are primarily relevant to the application of the wife in this regard:
Section 116(1)(b)
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
…
(b)both of the following apply:
(i)     the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)     the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
Section 117 (1)
Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)     that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)     that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Section 117(2)(c)
For the purposes of subparagraph (1)(b)(i) the grounds of departure are as follows:
…
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)     because of the income, earning capacity, property and financial resources of the child; or
(ia)    because of the income, property and financial resources of either parent; or
(ib)    because of the earning capacity of either parent; or
(ii)     because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child; or
(iii)   because an amount (the additional amount ) of a liable parent's child support income amount was earned, derived or received by the liable parent for the benefit of a resident child or resident children of the liable parent; or
(iv)    because an amount (the additional amount ) of an entitled carer's child support income amount was earned, derived or received by the entitled carer for the benefit of a resident child or resident children of the entitled carer.
Section 117(4)
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)     himself or herself; or
(ii)     any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)     to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)     to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.
Section 117(5)
In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)     any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)     the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Substitution Order
The following sections of the Child Support (Assessment) Act 1989 are those sections which are primarily relevant to the application of the wife in this regard:
Section 123(1)
Application may be made to a court having jurisdiction under this Act for an order that a liable parent provide child support for a child otherwise than in the form of periodic amounts paid to the carer entitled to child support.
Section 124(1)
Where:
(a)a custodian entitled to child support or a liable parent makes an application to a court under section 123; and
(b)the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
Section 124(2)
In determining the application, the court must have regard to:
(a)the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa)any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(b)any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit; and
(d)the effect that the making by the carer entitled to child support of an application under section 128 (Pensioners entitled to apply to have assessed child support not reduced by more than 25%) would have on the order proposed to be made by the court (and any statement included in the order under section 125).
Section 124(3)
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
Section 124(4)
In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
Section 125(1)
If the court makes an order under section 124, the court must state in the order whether the child support ordered to be provided by the liable parent is to be credited against the liable parent's liability under any administrative assessment (in this Division called a relevant administrative assessment ) of the child support payable by the liable parent to the carer entitled to child support that relates to the period, or a part of the period, for which the order has effect.

The evidence

The husband was represented by Mrs Willis. The husband relied on his affidavit filed on 24 April 2007. He gave evidence and was cross examined.
The husband called three witnesses, namely his friend Ms Z, another friend Ms B, and his mother, the paternal grandmother, all of whom filed affidavits on 24 April 2007. They all gave evidence and were cross examined.
The wife was represented by Mrs Pack SC. The wife relied on her affidavit filed on 20 April 2007. She gave evidence and was cross examined.
The wife called two witnesses, namely the mother of the husband’s first wife, Mrs M who filed an affidavit on 20 April 2007 and her best friend Ms Y who filed an affidavit on 16 May 2007. Both of these witnesses gave evidence and were cross examined, with Mrs M giving her evidence by way of telephone.
The Independent Children’s Lawyer was represented by Ms Benson.
The Independent Children’s Lawyer called one witness, namely Ms T, Social Worker who filed an affidavit on 28 August 2006 to which was annexed her Family Assessment Report dated 1 September 2006.
In addition, the Independent Children’s Lawyer relied on the affidavit of Dr G filed on 28 August 2006 to which was annexed her psychiatric assessment of both parties. Dr G was not cross examined because she had not been able to be contacted for that to be arranged at the time of the trial.
The husband gave his evidence reasonably well, and in general terms I found him to be a credible witness. However, I consider that he was evasive in giving evidence in cross examination about his income, and perhaps more importantly I find that he was behind the telephone call made to the wife by Ms W on 14 November 2005. Ms W impersonated a police officer, sought the wife’s address, and the wife complied. I find that this was arranged by the husband to ascertain the wife’s address.
In this regard I note that the husband complains that shortly after he commenced proceedings he began to received abusive telephone calls and this continued through to April this year. The husband says that the wife did not make the calls but at least one was made by a friend of hers, and he suspects that she was behind it. The wife denies this and in fact she was not cross examined about this. Thus I am in no position to make any finding about it even if it was relevant to the issues that I have to determine.
The wife did not give her evidence well. I found her to be facetious and condescending to counsel cross examining her, she expected that whatever she said should be accepted without question, and she played the victim.
The wife freely admitted that she was angry and bitter towards the husband, and I have little doubt that that coloured her evidence. For example, I consider that she exaggerated her allegations of domestic violence and I have little doubt that she was more than capable of standing up to the husband and of taking control. I accept to a certain degree the husband’s description of her as domineering and manipulative. He of course was just the same.
The wife was convinced that the husband used her emotional reaction to the trauma of the murders and the subsequent trial in an attempt to portray her as not being capable of caring for the child. She was also convinced that the husband instigated a “smear campaign” against her by making false allegations. Unfortunately, although there was an element of truth in the former claim, the wife appears to have become obsessed with this and she made that a focal point of these proceedings instead of addressing far more relevant issues as to what was in the child’s best interests.
The wife sought to corroborate her allegations of violence by the husband against her by seeking to introduce evidence that the husband was violent to his first wife. However, I refused to allow certain evidence in this regard from Mrs M, the mother of the husband’s first wife. The husband though called Ms Z as a witness to counter these allegations. In the end result he need not have done this, and thus her evidence became irrelevant.
The husband’s other witnesses, his friend Ms B and his mother, the paternal grandmother, were more helpful. The former corroborated to a certain extent the husband’s evidence that he was a good father, whilst the latter dealt with the relationship between the child and the husband and his care of her. The husband’s mother also strayed into the issue of domestic violence but she did not see the parties often enough to be of any real assistance on this topic. Her evidence was of great assistance though in relation to the allegations that the wife made about the very first time she claims the husband was violent to her, approximately one month after they married. The wife left the home and initially went to the husband’s parents’ home, and thus the husband’s mother was well placed to give evidence about this occasion. She says, and I accept her evidence in this regard, that the wife said nothing about any act of violence by the husband and she did not see any signs of injury.

As to the husband’s care of the child, and his relationship with her, the paternal grandmother said pointedly that, “fatherhood” came “naturally to [the husband]”. Again, I accept her evidence in this regard.
The wife called Mrs M as a witness but to repeat I struck out a significant portion of her affidavit and specifically that part which dealt with the relationship between the husband and his first wife. What was then left of her affidavit was of no use to me at all in deciding the issues in this case.
Similarly, the wife called Ms Y, and I found her evidence unhelpful. She deposed to her observations of the parties in 2003 and 2004, namely before separation, but I consider that to be too long ago to be relevant. Moreover she was clearly biased in favour of the wife.
The Independent Children’s Lawyer relied on the report of Dr G which comprised a psychiatric assessment of both parties. She also called as a witness Ms T who provided a Family Assessment Report.
I have set out above in paragraph 44 above. Dr G’s assessment of the parties and her opinion, and I will not repeat the same. Importantly though, it must be remembered that this report was presented in August 2006, and since then the husband has come to accept that the wife has overcome her post-traumatic stress disorder and her parenting capacity is no longer affected by the same. That the wife has overcome these difficulties was confirmed by Ms T in her Family Assessment Report.
This of course does not affect the circumstance, which is accepted by everyone in this case, that the events of the past and particularly the fallout from the wife’s reaction to the trauma associated with the murders and the subsequent events play a significant part in the high level of conflict that exists between the parties.
Ms T is an experienced social worker, mediator and counsellor, and she has had a long history of providing Family Assessment Reports to this Court. Her report and her oral evidence have assisted me greatly in this case. She was logical and sensible in her approach and she demonstrated considerable insight in assessing the parties and the child. In relation to the child she concluded as follows:
“[The child]’s needs and attachments
From the assessment, [the child] presents age and stage appropriate. She is a well-adjusted child who engages easily with other. She is intelligent, inquisitive, good-natured and well-behaved.
During the assessment she was observed to have a major attachment to both parents in that she derived a sense of safety and security from proximity to either parent.
She separated easily from her parents and was very pleased to see the other parent. Conversely, when re-united with the other parent she was welcoming and made the transition easily. Even when she was very tired, there was no evidence of any reluctance to return to her mother, as described by her father.
Overall, [the child] appears to be thriving under the current court ordered living and visiting arrangements.”
However, there was one concern that I had about Ms T’s assessment and it was the fact that she chose to speak to Mrs M, the mother of the husband’s first wife, and the fact that she then included what Mrs M told her in her report, and commented that the wife’s description of the husband as abusive was supported by Mrs M’s “account” and that “contradicts” the husband’s “description of his relationship with his first wife”.
It was completely inappropriate for Ms T to speak to Mrs M given that she had no relevant connection with these proceedings, and it was highly prejudicial to the husband’s case to report what Mrs M told her in the way that she did. This had the prospect of jeopardising the integrity of the report and the weight that could be attached to it. However, fortunately this prospect did not eventuate because I was satisfied that Ms T did not allow what Mrs M told her to impact on or influence her assessment, save and except to confirm that a conservative approach was warranted. She made it clear that even putting aside what Mrs M told her, the nature of the dispute between the parties required a conservative recommendation. Further, Ms T made it clear in her report that it was for the Court to make findings about disputed facts. Ultimately, of course, I made an order pursuant to Section 136 of the Evidence Act 1995 in relation to the use that could be made of this part of her report.

Section 60CC of the Family Law Act 1975

I turn now to the factors that I must take into account in determining what is in the best interests of the child (sub-sections 60CC(2) and (3)).

The primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

The evidence is clear that the child has a close and loving relationship with both parents. However, the husband says that because he is not involved “in the day to day decision making in relation to [the child]” and the wife views her role as that of a “solo parent”, the child does not have a meaningful relationship with him. He says that that can only occur if there is at least an equal shared care arrangement which will allow him to have a greater role in the child’s life.
There is no doubt that since the separation when the wife left with the child the husband has been playing “catch up”. Initially there was two weeks without any contact, then there was regular and frequent day time contact but it changed again when the husband instituted proceedings with the wife refusing to allow any time until an order was made.
Since the initial order in October 2005 the time that the child spends with the husband has increased, and indeed it has increased further as a result of the interim consent orders made at the conclusion of the trial. Those orders provide what can be termed substantial and significant time in accordance with the provisions of Section 65DAA(3) of the Act.
Of course, nothing in the Act says that equal shared time is the only way to ensure a meaningful relationship between a child and a parent, and the evidence in this case does not support the husband’s claim in this regard.
The question of equal time with each parent is a result which this Court must consider under Section 65DAA(1) of the Act where for example, as in this case, the parties consent to an order for equal shared parental responsibility. However, it is still subject to what is in the best interests of the child, and indeed, that is also the case in assessing not only how a meaningful relationship can be ensured, but also whether in the particular circumstances of the case there is in fact a benefit to the child of having a meaningful relationship.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in Section 60B. One object is to ensure that the best interests of the children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;” (Paragraph 60B(1)(a))
Further, one of the principles underlying the objects in Section 60B is that (except where it is or would be contrary to a child’s best interests):
“(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (Paragraph 60B(2)(b))
It has been said that the objects and principles in Section 60B guide the interpretation of Section 60CC, and for that matter Section 60CA. Now that may be the case, but the best interests of the children are still the paramount consideration and that is quite apparent from the wording for example of paragraphs 60B(1)(a) and 60B(2)(b).
Paragraph 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the Court of the importance of the benefit to a child of having a meaningful relationship with each parent. It requires the Court to take that benefit into account but leaves the additional considerations in Section 60CC to determine whether that benefit can be achieved in each individual case consistent with the best interests of the child involved.

(b) the need to protect the child from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence;

Both parties make allegations of family violence here, with the wife of course alleging a history of domestic violence towards her by the husband. I have found though that the wife has exaggerated her evidence in this regard. Although I accept that the husband had an anger management problem, and he exhibited mood swings, and that he would yell and scream at the wife, it was far from one sided. The parties had a volatile and turbulent relationship and I accept that the wife too would “fly into rages” and argue with and abuse the husband. As Ms T comments in her interviews with the parties “each parent’s account of events appear to mirror the other one’s”.
The wife alleges that the husband made threats to her safety and her life. She says he threatened her with a gun, and he intimidated and scared her by carrying around a “retractable batten”. The husband did have a replica pistol and he did pretend to shoot it and put it to the wife’s head, and he had a baton, but I am not satisfied that he used them to in fact threaten the wife’s safety or her life. Although the husband’s actions were completely inappropriate, I accept his evidence that the wife was fully aware that the pistol was a replica. The wife is clearly justified in complaining about this conduct by the husband but I find that given her knowledge it is disingenuous for her to use these allegations to justify amongst other things her actions in leaving the former matrimonial home as she did with the child, and in limiting the time the child was able to spend with the husband. It is all very well for the wife not to want to have anything to do with the husband herself, but it is an entirely different matter to involve the child in what ostensibly are adult issues. She continues to want to keep her address secret, albeit conceding in evidence that it is important that the husband knows where the child lives.
However, the husband can take no comfort in how the wife has behaved. To repeat, there is an element of truth in the wife’s claims that the husband has used her emotional reaction to the trauma of the murders and the subsequent events to undermine her role as a parent and to suggest that she was unstable and an unfit parent. He clearly tried to manipulate the circumstances to assist him in this case. Fortunately, this has ceased now, but unfortunately the wife became obsessed about this and her concerns linger on.
Each party set out their respective allegations chapter and verse in their affidavits, and in support of their respective positions. However, as I said during the course of the trial, much of that was irrelevant to the decision that this court has to make. The material was historical and in many respects had no bearing on the child or what was now in her best interests. What this material did do though was highlight the level of conflict between the parties and how they have been allowing their own issues with each other to take priority over the needs of the child. This is what the child needs protection from, and not any alleged family violence by either parent.
The parties continued their abusive and aggressive behaviour towards each other after the separation, and in particular at handovers of the child. Fortunately, due to the young age of the child, there is no evidence yet that this has had an impact upon her, but, as Ms T says, it is only a matter of time, and both parties should be ashamed about letting his occur.
The husband though went further. He made a number of complaints to the Department of Child Safety about the wife and her care of the child, and also alleged to the police that the wife had assaulted him. He also applied for a protection order against her.
I find that the complaints to the Department were not only specious and invariably exaggerated, but in one instance he made false allegations. He complained to the Australian Federal Police that the wife had perjured herself in her initial responding affidavit filed in the Court. He then told the Department that the wife was being charged with 28 charges of perjury when in fact this was not true.
In March 2006 the husband complained to the police that at handover the wife assaulted him by thrusting a lollipop taken from the child into the husband’s face. However, the wife had a tape recording of what was said between the parties and as a result of the police hearing that no charges were laid. There is no doubt though that the child was upset and distressed by the actions of both parents, yet the husband’s reaction in seeking to have the wife charged with assault simply defies belief. It does highlight though the extent to which he has been prepared to go to undermine the wife’s position.
In October 2005 the husband even applied for a protection order against the wife alleging that her “violent, angry and threatening behaviour” towards him escalated after he instituted proceedings in this Court. In November though the wife responded with her own application, and in February 2006 by consent and without admissions mutual Domestic Violence Orders were made.
As a result, one would have thought that that would have put an end to the parties behaving badly at handovers, but not long thereafter the incident with the lollipop occurred. Fortunately though there have been no further incidents at handover, and the evidence is that of late the parties have been more civil to each other, but perhaps the real reason is that with the changes to the places of handover there is less opportunity for the parties to interact. In any event, it is not as though the parties are incapable of conducting themselves appropriately. As Ms T noted in her report:
“…observations of the parental interaction were made when [the child] was swapped for the purposes of the assessment. These observed handovers were conducted cooperatively and peacefully and the writer concluded that both parties are able to act respectfully when required.”
To repeat then, domestic violence is not something that the child needs protection from, but rather there is a real need to protect the child from the high level of conflict that continues to exist between the parties. However, this can only come from the parties themselves. They need to learn to cooperate, to communicate, and to trust each other. They need to put aside their feelings towards each other and to prioritise the needs of the child.

The additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;

This is not relevant here because of the child’s age.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The evidence, including the independent evidence of Ms T, establishes that the child enjoys a very close and loving relationship with both of her parents. Indeed, Ms T said this:
“During the assessment she was observed to have a major attachment to both parents in that she derived a sense of safety and security from proximity to either parent.
She separated easily from her parents and was very pleased to see the other parent. Conversely, when re-united with the other parent she was welcoming and made the transition easily. Even when she was very tired, there was no evidence of any reluctance to return to her mother, as described by her father.”
The child’s relationship with other persons was not an issue that was explored in the trial. However, it is important to note that because of the wife’s estrangement from some members of her extended family over the murders of her family members, the child has no contact with those family members.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent;

I find that each party is able to facilitate and encourage a close and continuing relationship between the child and the other parent, but neither party is necessarily willing to do so. Their antagonistic feelings towards each other have prevented them from appreciating that the child needs to have a close and continuing relationship with both parents. They have both selfishly promoted their own positions and they have made every effort to undermine the parental role of the other of them. For her part the wife has not permitted the child to spend more time with the husband than she considered that he should have. For example, she was entirely unreasonable in her response to his request for additional time when his parents were coming to far north Queensland from Melbourne in July 2006. Certainly, she has agreed to increase the time that the child spends with the husband, and she has provided make up time, and that is to her credit, but the concessions have not come readily, and it has been necessary to have a trial in this Court to elicit an appropriate response from her. She also cannot take any real comfort in permitting photographs of the husband to be retained in an album seen by the child.
For his part the husband attempted to use the wife’s emotional reaction to the murders of her family members and to the subsequent events as a basis for suggesting that she was an unfit mother and any time she had with the child should be supervised. He also took it upon himself to tell others of his concerns in this regard, including the child’s medical practitioner, and he also made specious and false claims to the Department in order to bolster his case. With this background, the husband’s concession about lunch on Christmas Day 2005 and his offer about the day following Mother’s Day in 2006 pale into insignificance.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child) with whom she has been living;

This is an important factor in this case. To introduce equal time will bring about significant changes in the child’s life given that since the separation the child has been in the primary care of the wife.
To repeat, the husband says that for the child to have a meaningful relationship with him there needs to be at least equal time. Initially of course, the husband was wanting an order that the child live with him for the majority of the time, but he now seeks an equal shared care arrangement as his primary position.
The husband says that ever since the separation he has been “scrambling” and playing “catch up”. The wife acted unilaterally in leaving the former matrimonial home with the child whilst the husband was in Melbourne. She left a note saying that the child would be residing with her and he would have access. She removed the child from the day care centre that she was attending and it took the husband six months to find out where she was. He still does not know where she lives and for some time he did not know which medical practitioner she was consulting. He has had “limited” time with the child on the basis of what he claims have been false allegations about him and his conduct.
The husband says the wife sees herself as a “solo parent”, and she does not concern herself with anything the husband says or does. He is on the outer and he wants to play at least an equal role with the wife in bringing up their child. He needs to be involved in the child’s day to day life and he needs real time with her. He says that she should not have one home to live in and one home to visit, she should have two homes.

In relation to the wife I highlight the following:
157.1At separation the wife left with the child whilst the husband was in Melbourne. She left a note but it was not until two weeks later that the wife permitted the child to spend some time with the husband. In doing this the wife clearly failed to appreciate the need for the child to maintain her relationship with the husband.
157.2In October 2005 the wife relocated with the child from the D area to the Cairns area without letting the husband know. Now, even allowing for the fact that this was not long after separation and emotions were still running high, this was inappropriate and particularly given that the child had been spending time on a regular and frequent basis with the husband to that point in time.
157.3When the husband instituted proceedings in October 2005 the wife’s reaction was to cease contact pending any order made by the Court.
157.4The husband sought additional time with the child in July 2006 whilst his mother and her husband were visiting. The wife though refused to allow him a block period of additional time beyond some make up time for previously missed occasions. Again, a failure to appreciate the needs of the child on the part of the wife.
157.5The wife failed to advise the husband that the child was attending the ABC Learning Centre in S when the wife was working. The husband only found this out six months later. This was a failure by the wife to appreciate the role that the husband has in the child’s life.
157.6The child had an accident on Friday 25 August 2006 which required her attendance at hospital for plastic surgery. However, the wife failed to notify the husband of this and he only found out from his solicitor on Monday 28 August 2006. Further she then proposed that there be no contact with the husband for two weeks. This was a distinct failure by the wife to recognise the importance of the husband’s role in the life of the child.
157.7Just like the husband, the wife has taped handovers. The child is acutely aware of this and my comments about the husband doing this apply equally to the wife.
157.8The wife refused to tell the husband of the name and address of the child’s medical practitioner. I find this to be an appalling lack of judgment on the wife’s part. The husband is entitled to know of and be able to inquire about the child’s health, particularly when the parties do not communicate. The husband did eventually find out the identity of the medical practitioner, and he visited him. However, not content to ascertain relevant details about the child’s health I accept the evidence of the wife that the husband discussed the wife’s difficulties with him and suggested that she was mentally disturbed. Now, this highlights the antagonism that continues to exist between the parties and how neither of them have been able to act appropriately in the interests of the child.
157.9At one stage the parties commenced to use a communications book, but after a short time the wife ceased using this book alleging that the husband was using it inappropriately. Since then there has been almost no communication between the parties and indeed the husband has insisted that communication only take place through solicitors. This is a symptom of their antagonism towards each other and it does neither party any credit.
157.10The wife enrolled the child in the L School in February 2007 without consulting the husband, and this despite the child already being enrolled in the R School.
On the positive side Ms T assessed the wife as “an excellent parent with an acute understanding of her daughter’s personality” and who “has well-developed strategies for handling her”. She said that “she demonstrates insight and sensitivity, and appears to have learnt significantly from her adverse experiences”. That is not quite how I would describe her, but I take on board Ms T’s comments.
Ms T also described the husband as a “conscientious and loving parent who enjoys his daughter’s company as much as she does his”.
Ms T found that both parents could be child-focused, and they had the ability to behave appropriately towards each other. However, she also found that they were not doing that. They are still very much in conflict and the worry is that very soon this will impact adversely on the child.
The conflict that exists between the parties is perhaps the single most important issue in this case, including the impact of that on the child.
Both parties have to take responsibility for the high level of conflict which exists. They have been aggressive and abusive to each other at handovers in the presence of the child. The husband has related to others the wife’s emotional reaction to the murder of her family members. He has attempted to promote this as a reason for the wife only having supervised time with the child despite she having been the primary caregiver. The wife has made allegations of domestic violence against the husband which I have found are exaggerated and in at least one instance untrue. The wife relocated from D to Cairns without telling the husband and she has put limitations on the time that the child has been able to spend with the husband. The husband has made specious claims that the wife has assaulted him. The husband arranged for a friend to telephone the wife impersonating a police officer in order to find out her address. The husband believes that the wife has arranged for her friends to harass him on the telephone.
In summary, the parties have deeply antagonistic feelings towards each other and they do not hide these feelings from the child. The both expressed to Ms T that “[the child] needs both parents in her life” and they both said, “they desired normality to return so they can get on with their lives”. However, it is the parties themselves who have the ability to stop the bickering and the antagonism before the conflict starts to impact adversely upon the child. There have been some positive signs but there is still a long way to go.

(j) any family violence involving the child or a member of the child’s family.

I addressed this issue when considering the primary considerations, and I do not need to repeat what I said there.

(k) any family violence order that applies to the child or a member of the child’s family, if;

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

To repeat, each party applied for a protection order, the husband in October 2005 when he claimed that the wife’s “violent, angry and threatening behaviour” towards him “escalated” after he instituted proceedings, and the wife in November 2005 following the telephone call from Ms W impersonating a police officer. Interim orders were made and the applications were then set down for hearing in February 2006. On that day, by consent and without admissions, mutual Domestic Violence Orders were made. They both expire in February 2008. These orders restrain the parties in various ways but subject to written agreement or a Family Court order.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;

Neither party made any submissions about this factor. For my part, whatever order is made here will still leave open the prospect of further litigation.

(m) any other fact or circumstance that the court thinks is relevant;

The husband referred to this factor in his summary of argument but did not raise anything that has not been considered already. Neither the wife nor the Independent Children’s Lawyer raised any issue under this heading.

Section 60CC(4) of the Family Law Act 1975

As referred to above, pursuant to Section 60CC(4) of the Act the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibility as a parent. I have considered this important issue when addressing paragraphs 60CC(3)(c) and (i) of the Act, but in relation to some specific matters I make the following comments:
168.1In terms of major long term issues, the wife moved with the child from the D area to the Cairns area without telling the husband, she unilaterally removed the child to a different child care centre again without informing the husband who only found out approximately six months later, the wife enrolled the child at the L School in February 2007 without consulting the husband and despite the parties previously enrolling the child in R School, the wife refused to tell the husband the name and address of the medical practitioner consulted by the child, and the wife has continued to refuse to reveal her residential address. In these instances she has failed to facilitate the husband participating in making decisions about these important issues, and she has thereby failed to fulfil her responsibilities as a parent. Fortunately though the only issue that remains in contention is the refusal of the wife to tell the husband where she and the child live. She says that she is afraid of the husband, but in my view there is no longer any basis, even if there was one previously, for the wife to keep her address secret. The husband should know where the child lives, but to avoid any difficulties an appropriate injunction should be put in place.
168.2At various time since the separation the wife has “limited” the time that the child spends with the husband, but fortunately with the orders that are now in place the child is able to spend substantial and significant time with him. Thus, this is no longer a concern.
168.3The wife submits that the husband has failed to fulfil his obligation to maintain the child. Although he is voluntarily paying more child support than he is required to under the assessment, the amount that he has been paying is still woefully inadequate. The husband determined himself the level of support that he would provide, but he failed to present any evidence as to how it was calculated.
At the end of the day the issue is the ability of the husband to pay more, given that there can be no doubt that the child’s needs require that more be paid. The husband of course has now seen his way clear to increasing the amount from $100.00 to $160.00 per month, but again there is no evidence as to how this amount is calculated. In this regard, to repeat, I found that the husband was evasive in cross examination when being asked about his income. However, there was no evidence presented which would allow me to make any finding as to what income he was in fact capable of achieving.

Parental responsibility

Both parties seek an order that in effect they have equal shared parental responsibility for the child, and in my view this is certainly appropriate and in the child’s best interests.
On the basis that I will be making that order, I am required under Section 65DAA of the Act to consider in turn whether the child spending equal time with each of the parents or spending substantial and significant time with each of them would be in the best interests of the child, and is reasonably practicable, and, if either is, I am required to consider making orders accordingly.
In relation to equal time, I have already found that an order to that effect would not be in the child’s best interests, and I do not propose to say anything more about that. However, I do consider that the child spending substantial and significant time with the husband is in the child’s best interests, and I will elaborate on that shortly in these reasons.

Conclusion in relation to the child issues

Having regard to the evidence, the submissions of the parties, and the principles relevant to my determination including the objects and principles set out in Section 60B of the Act, I have concluded that it is in the best interests of the child that she lives with the wife and spends substantial and significant time with the husband.
The child is described by Ms T as “thriving” under the living arrangements that were then in place. Since then, the time that the child spends with the husband has increased, and I find that this assessment by Ms T still applies.
The impediment to introducing equal time is perfectly clear. The parties remain antagonistic towards each other and there is still a high level of conflict between them. There is no communication, no cooperation and no trust, and until the parties can learn to work together and put aside their feelings towards each other and address the emotional and psychological needs of the child, a shared care arrangement is not in the child’s best interests.
Both parties have to take responsibility for addressing this state of affairs. How it arose, and whose fault it is not necessarily a productive enquiry. However, I consider it useful to reflect on what Ms T said at page 3 of her report, namely:
“At individual interview, both parties expressed deeply antagonistic feelings towards the other. However, it soon became apparent that each parent’s account of events appeared to mirror the other one’s. For example, both stated each was trying to undermine the other’s credibility; both alleged the other one is manipulative and unstable; each accused the other of being driven by property issues; [the wife] alleged [the husband’s] friends have harassed her and that the police have evidence substantiating this; [the husband] alleged [the wife]’s friends have harassed him and that there is police evidence substantiating this; and so on.
It is characteristic of some separations, especially when associated with traumatic events, such as traumatic death, that both parents may experience heightened feelings of alienation, distrust and misunderstanding of each other’s motives and behaviours. These misunderstandings and unresolved emotions often drive the dispute and undermines the development of a functional co-parenting relationship in people who are otherwise highly functional, well-intentioned and well-equipped individuals capable of jointly providing for their child.
In this case, the traumatic events leading up to the [O’Loughlin] separation, the traumatic allegations associated with separation and now the stress of the ongoing court case would certainly aggravate unresolved emotional issues for both [the husband] and [the wife].”
Ms T also found that the parties were capable of behaving appropriately towards each other and she strongly recommended that once these court proceedings had concluded they should “meet together with an experienced divorce therapist so they may find closure to old wounds and thereby build a more functional, co-parenting relationship” for the child’s sake. However, that is up to the parties themselves.
Turning then to the respective orders sought by the parties on the basis that the child primarily lives with the wife and the child spends time with the husband, this has to be looked at in two stages, namely until the child commences her preparatory year at school in 2009, and after she commences that year.
In relation to the first stage the parties are agreed that the child should be with the husband from 4:00pm Friday until 4:00pm Monday of each alternate weekend, but as referred to already the husband seeks that the child also be with him from 9:00am Wednesday until 9:00am Friday in the intervening week, whereas the wife wishes to maintain the existing order which provides for the child to spend time with the husband from 9:00am Monday until 9:00am Tuesday in the intervening week.
The Independent Children’s Lawyer supports that there be a total of four nights each fortnight, in either two blocks of two nights or three nights over the weekend and one night during the week as currently applies.
The other issue to consider is that the wife works on Mondays and Wednesdays and they comprise obvious times for the child to be with the husband, subject though to the child still being able to attend child care to allow for her to play and socialise with other children.
I consider that the current arrangement is the one that most meets the child’s best interests. Indeed, more than the husband’s proposal it provides for the child to spend regular and frequent time with the husband and does not allow too long a gap between those times. Thus it should be 9:00am Monday until 9:00am Tuesday in the intervening week. That also allows the child to attend child care each Wednesday.
With handovers I also consider that the current order should continue.
In relation to extended periods of time there is also a difference between what each party seeks. The wife proposes that each party have two seven day periods during each year, but the husband wants one half of each school holiday period on an alternate week basis. The Independent Children’s Lawyer supports the husband’s proposal, and I too consider that it should be put in place. It will provide continuity for the child when she starts school.
In relation to special days, there should be orders for Mother’s Day and Father’s Day, the child’s birthday in each year, the period between Christmas Eve and Boxing Day, and the parents’ birthdays in each year. Fortunately there is little difference between what the parties each seek in relation to these special days, although not all of them are included in the proposals of each party. Thus, I will make the order that I consider is in accordance with the best interests of the child.
In relation to after the child commences school in 2009, the husband has not provided an alternative proposal to equal time on a week and week about basis. Clearly though I propose to proceed on the basis that he would seek as much time as he can achieve with the child, and at least a continuation of his proposal for alternate weekends and the intervening week during the stage prior to the child commencing at school.
Once the child commences at school I consider that it would not be appropriate to continue the time on each alternate weekend to 4:00pm on the Monday. In my view on each alternate weekend the child should be collected by the husband from school on the Friday afternoon and then returned by the husband to school on the Monday morning.
In relation to time during the school week, the wife proposes none, but I consider that it is essential for the child to continue to spend time with the husband in the intervening week on an overnight basis. Thus the husband should collect the child from school on the Monday afternoon and return her to school on the Tuesday morning. That will not disrupt the child’s schooling given that she will only be in the initial stages of her formal education. As she gets older and the school work increases though it may be necessary for the parties to revisit that arrangement.
In relation to school holiday periods, the parties are ad idem that they should be shared equally and that they should alternate the first and second half of each period.
Once again there is no real issue with special days, and I will make orders accordingly.
With other orders proposed by the parties, I must say that most of them were not the subject of any specific evidence or submission, save and except from the counsel for the Independent Children’s Lawyer. Thus, I will have to do the best I can in assessing the need for each particular order, but of course taking into account what the Independent Children’s Lawyer says. In this regard for example I do not propose to make the order sought by the husband that “neither party will contact the other party other than in accordance with the terms of these orders or for matters concerning the urgent welfare of the child”. I want to encourage the parties to communicate and cooperate in the interests of their child.

Child support

As referred to above the only issue now in dispute here is whether the order for departure should provide for child support until the child commences school at a rate of $150.00 per week as the wife wants or at a rate of $160.00 per month as the husband wants. The current assessment provides for the husband to pay the sum of $27.67 per month, but the husband is voluntarily paying the sum of $160.00 per month.

Now, turning to the requirements under the Child Support (Assessment) Act 1989, the Court has to be satisfied that the parties are parties to an application pending in this court and that it would be in the interest of the husband as the liable parent and the wife as the carer entitled to child support whether an order for departure should be made in the special circumstances of the case (paragraphs 116(1)(b)(i) and (ii)). In this regard the parties of course have been parties to a pending application for orders under Part VII of the Family Law Act 1975, and neither party raised any suggestion that the second requirement is not satisfied here. Indeed neither party made any submission whatsoever. In any event, I am satisfied that this Court should hear and determine the wife’s application for departure. It is certainly in the interest of all parties for that to occur.
The Court must then have regard to the relevant matters arising under Section 117 of the Act. The application must be made in relation to a child in the special circumstances of the case, there must be one or more grounds for departure, and it must be just and equitable and otherwise proper to make the particular order sought.
The ground of departure identified by the wife’s senior counsel is comprised in paragraphs 117(2)(c)(ia) and (ib), and the special circumstances relied upon by the wife are firstly that “the father is employed by a company and, as such, can regulate his income”. Secondly, “he appears to have chosen not to exercise whatever earning capacity he has”. He has been basically unemployed since the date of separation and his evidence is that he has earned a taxable income of $5,000.00 for the last financial year. Thirdly, there is “his asset position” as a result of the consent order for property settlement made on 28 May 2007.
Because the husband accepted that there should be a departure order made, I did not have the benefit of argument from counsel as to whether these facts do constitute special circumstances, and I must say that prima facie I have some doubt that that is the case here. However, it is arguable that they come within the words expressed by the Full Court in the case of SHEAHAN & SHEAHAN (1993) FLC 92-375. At p.77,884 Ellis J said this after referring to the decision of SAVERY & SAVERY (1990) FLC 92-131 where “special circumstances” were held to be “facts peculiar to the particular case which set it apart from other cases”:
“The relevant facts of the particular case must be considered to determine whether they constitute special circumstances which, in this context, if not taken into account, would result in injustice or undue hardship to any person.”
Thus, I am prepared to accept that the facts referred to amount to “special circumstances”.
To repeat, the ground of departure identified by the wife’s senior counsel is comprised in paragraphs 117(2)(c)(ia) and (ib), namely, in the special circumstances of the case, application in relation to the child of the provisions of the Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child, because of the income, property and financial resources of either parent, or because of the earning capacity of either parent. However, this was not elaborated on by Mrs Pack beyond referring to the special circumstances relied upon, and of course it was not challenged by Mrs Willis. Nevertheless I am prepared to proceed on the basis that this ground of departure is applicable.
Next, it is necessary to determine whether it would be just and equitable to make the orders sought, and this requires a consideration of the factors set out in Section 117(4). Mrs Pack took me through these factors, and submitted as follows:
197.1The proper needs of the child were as set out by the wife in her Financial Statement filed on 20 April 2007, namely $176.00 per week but with an additional amount to allow for her accommodation needs. That was not challenged by the husband.
197.2The total gross weekly income of the wife is $812.00 which includes the $25.00 per week that the husband pays for child support, her part parenting payment and her family tax benefit allowances. Her expenses total $638.00 not including income tax, but including the child’s expenses. Again, none of this was challenged by the husband.
197.3As a result of the consent order for property settlement the husband is entitled to 70% of the net assets of the parties and this has placed him in a much stronger financial position than the wife.
197.4The evidence of the husband was that he had only been able to achieve a gross income of $5,000.00 in the financial year up to the date of the trial.
197.5In relation to the earning capacity of the parties, the wife has qualifications but she is limited by the need to attend to the care of the child. With the husband there is no “hard evidence” as to whether his business will become successful or not. At this stage he has very little work.
On the basis of these submissions the obvious problem for the wife is that there is no evidence that the husband is able to afford the amount sought by the wife. There was no evidence that he could earn income from the assets that he now has, and there was no evidence that he was able to secure other employment, and there was no evidence that he was not properly exercising his earning capacity. Indeed, this was the thrust of the submissions made by Mrs Willis in opposing the amount sought by the wife.
To repeat, I found the husband to be evasive when giving evidence of his income. However, there is no basis for me to make a finding that the husband’s income is a different figure than the husband indicated. Thus, I can only approach this matter on the basis that at the moment the husband’s income from his business is low, and given he had no contracts in place for the future there is also no telling whether and when his income might increase.
Thus, although it would be just and equitable as regards the child and the wife for the amount of child support to be increased, it cannot be said that is it just and equitable as regards the husband.
Finally, there is the “otherwise proper” requirement, and in that regard I need to again set out Section 117(5) of the Act which provides as follows:
“117(5) In determining whether it would be otherwise proper to make a particular order under this Division, the Court must have regard to :
(a)   the nature of the duty of a parent to maintain a child…and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)   the effect that the making of the order would have on:
(i)   any entitlement of a child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)    the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.”
Again, there was no evidence presented and no submissions made that would allow me to consider in any way the issues referred to in sub-paragraph (b), but in any event, I consider that the extent of the departure order here must stand or fall on the evidence as to the husband’s income and his earning capacity.
In that regard, there is no basis for me to make the order that the wife seeks, and indeed, even $160.00 per month as proposed by the husband may be problematic. Nevertheless, I propose to make an order in the terms proposed by the husband.
In relation to what is referred to as the substitution order, although that is by consent, the wife is in receipt of an income tested pension, allowance or benefit, and thus I must give reasons for making the order and the statement included in the order under Section 125 of the Act (Section 126 Child Support (Assessment) Act 1989).
The order proposed is that once the child commences at R School in 2009 the husband will pay all school fees and other expenses, and that will count for 100% of the annual rate of child support payable under any relevant administrative assessment for so long as the child attends at that school. I note that this departs somewhat from what the husband proposed in paragraph 262 of his affidavit of evidence in chief, but the wife’s counsel was very clear in putting to me in her final submission that the payment of school fees and other expenses would count for 100% of the annual rate of child support payable under any relevant administrative assessment. Thus I take this matter no further.
It seems to me that the necessary pre-conditions set out in Section 123 of the Act to allow this application to be made have been met.
Pursuant then to Section 124(1) of the Act, the Court must be satisfied that it would be just and equitable as regards a child, the carer entitled to child support and the liable parent, and otherwise proper to make the order sought, and the matters the Court must have regard to are set out in sub-sections 124(2), (3), (4) and (5).
There was no specific evidence presented and no submissions were made by either party as to this. Thus, doing the best I can, the facts are that both parties are keen for the child to have the best education possible, and this is the method by which that can be achieved. Although it will mean that the wife does not receive child support from the husband to meet the day to day expenses of the child, presumably with the child at school the wife will be able to generate more income by working more, and the husband of course will still financially support the child when the child is spending time with him, and this is not insignificant. I also consider it important that this is an agreed position that the parties have reached. Given the antagonism and the high level of conflict that exists between the parties it is certainly refreshing to see that they are able to agree this one aspect.
In the circumstances I am satisfied on the evidence before me that the order sought is just and equitable as regards to the child, the wife and the husband and is otherwise proper, and I propose to make it.

I certify that the preceding 209 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

17 December 2007