P and C
[2002] FMCAfam 245
•31 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & C | [2002] FMCAfam 245 |
| CHILDREN – Contact and cost of contact. |
| Applicant: | C J P |
| Respondent: | D C |
| File No: | (P)DNM2046 of 2002 |
| Delivered on: | 31 July 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 29 July 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant: | Mr P |
| Respondent: | Ms C |
ORDERS
That the orders made by the Family Court of Australia in Sydney on
28 January 1998 be discharged.
That the children of the marriage, J G P, born 21 April 1991, and N P, born 23 January 1993, live with the wife.
That the wife have responsibility for the day-to-day care, welfare and development of the said children when they are in her care and the husband have responsibility for the day-to-day care, welfare and development of the said children when they are in his care.
That the husband have contact with the children as follows:
a)for one-half of the mid-year Northern Territory school holidays each year, at times to be agreed between the parties, and, by agreement, to be the first half in 2003 and each odd-ending year thereafter, and the second half if 2004 and each even-ending year thereafter;
b)for the first half of the Christmas school holidays commencing in 2002 and each even-ending year thereafter, and the second half of the Christmas school holidays in 2003 and in each odd-ending year thereafter;
c)by telephone each Wednesday between the hours of 7 pm and 7:30 pm Australian Central Time, and at any other time as agreed between the parties;
d)for the purposes of telephone contact, the husband will provide the wife with a home telephone number which the children are to use to telephone the husband for the purposes of all telephone contact;
e)by telephone for a period of 15 minutes on each of the children’s birthdays.
Thirty-five days prior to the contact as set out in orders 4(a) and 4(b), the husband is to book air travel for the said children from Darwin to Sydney and return and advise the wife in writing of the costs of such travel, the departure and arrival times of each flight and the relevant flight numbers.
The wife is to pay to the husband, 14 days prior to the children’s departure for the contact referred to in orders 4(a) and 4(b), a sum equal to 30% of the said total costs of the airfares.
The husband is to endeavour to obtain the cheapest available pre-booked economy class air tickets for the contact referred to in orders 4(a) and 4(b).
The wife is to be responsible for delivering the children to the Darwin Airport at the commencement of such contact and ensure that the children board the necessary flight to Sydney.
The husband is to be responsible for collecting the children from the Sydney Airport and returning the children to the Sydney Airport for their return flight to Darwin at the conclusion of each period of contact.
Each party is to advise the other of the departure and arrival of the children before and after each period of contact.
In the event that the husband is in Darwin for any reason, he is to have contact with the said children upon giving 14 days notice to the wife as follows:
a)if it is a weekday, between the hours of 4 pm and 8 pm;
b)if it is on a weekend, from 9 am Saturday until 6 pm the following Sunday.
In the event that the said children are travelling in Queensland or New South Wales apart from any periods of contact with the husband, the wife shall inform the husband in writing two weeks prior to their departure and notify him of where the children will be staying and a telephone number on which they may be contacted, and permit the father to have not less than four hours contact with the children at a time and place to be agreed between the parties.
That in the event that either party proposes changing their respective place of residence, they are to advise the other party of such change two months prior to such change.
That in the event that the wife proposes any change of posting, including overseas posting, in connection with her employment by the Defence Forces, she is to advise the husband of such posting within 48 hours of such change of posting being made.
That the wife notify the husband forthwith if either child is hospitalised and/or referred to a medical specialist for treatment, and provide the husband with the name of each treating doctor or like medical professional attended by the said children, and authorise such person to provide to the husband any relevant information relating to the treatment and health of the said children.
That the wife authorise the principal of each school attended by the said children from time to time to send to the husband a copy of each school report concerning each of the said children and an order form for each school photo of the said children.
That the husband be at liberty to visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
That as soon as practicable the wife serve a sealed copy of these orders on the principal of each school attended by the said children.
That neither party change the names of the said children without the written consent of the other party.
That each of the parties be and are hereby restrained from denigrating the other parent or discussing any aspect of these proceedings and the judgments delivered herein in the presence or hearing of the said children.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM2046 of 2002
| C J P |
Applicant
And
| D C |
Respondent
REASONS FOR JUDGMENT
Applications
These are ex tempore reasons for judgment in the matter of P and C. The matter proceeded before me on a final basis on 29 July. It was not practical to deliver the reasons on 29 July due to the lateness of the hour, and I provide the reasons now.
The applicant in the proceedings is C J P. The respondent is D C. The proceedings relate to parenting orders in respect of two children, J G P born 21 April 1991 and, accordingly, 11 years and 3 months of age at the present time, and N P born 23 January 1993 and, accordingly, 9 years and 6 months of age at the present time.
The parties are the parents of J and N. Although they have been divorced for many years, I will refer to Mr P as ‘the husband’ in these reasons and to Ms C as ‘the wife’.
By way of his amended application filed 24 May 2002, the husband seeks contact to J and N on two occasions each year, namely for the whole of the mid-year Northern Territory school holidays and for one-half of the long Christmas school holidays each year. He also seeks orders in respect of telephone contact, and, of particular importance in the context of this case, he seeks orders that relate to the payment of airfares for the children to have contact with him. He also seeks a number of specific issues orders which relate to the schooling of the children, their health treatment, and in respect of any changes of their addresses and names.
The wife does not oppose orders for contact. She does, however, disagree as to who of the parties should pay the travel expenses related to the contact and how long the contact should be. She says the periods of contact should be for two weeks mid-year and for two weeks at Christmas.
Introduction
The central issue in this case relates to the payment of the costs of contact. At the present time the wife lives in Darwin with N and J. The husband lives in Moree in New South Wales, although very shortly – in a matter of days, in fact – he is moving to Point Clare in New South Wales, which I understand is on the central coast of New South Wales and where he owns a house.
However, whatever orders for contact are made, it will be necessary for the children to travel backwards and forwards between Sydney and Darwin by air at not inconsiderable expense.
It is the husband’s position that the wife should pay all the costs associated with the contact, or at least make more than a token payment towards the cost of the flights. It is the wife’s position that the husband should pay all the costs associated with the contact, although she did indicate in her evidence that she would be prepared to contribute 10% of the necessary cost of the tickets for the two children.
This is not a case that deals with where the children are to live principally. The parties agree that J and N are to continue to live in Darwin with the wife.
Background
Before turning to the evidence in more detail, it is necessary to briefly set out the important matters which bring the parties to this point.
The parties were married in Gosford, New South Wales, on 22 March 1991. The marriage between them was dissolved on 13 December 1995. The husband is presently employed as a manager by P S, although in the past he has been a member of the Royal Australian Army. The wife is a serving member in the Royal Australian Army. She holds the rank of Corporal, though she expects to be promoted soon. She is involved in clerical administration within the Army.
The husband has been previously married. He has a daughter, K, who was born on 3 November 1987. K lives with her mother in Canberra. In February 2002 the husband married T M. He and Ms M hope to have a child shortly. They have no plans to leave New South Wales.
The wife too has remarried. She lives with her husband, P C, J and N, and their 2-year old daughter, J, in Bees Creek in the rural area of Darwin.
It seems that the marriage between the parties began to break down in mid-1994. Around this time the wife joined the Army. She was posted to Wodonga. The husband was working in Sydney. He travelled between Wodonga and Sydney. The children lived in Wodonga. The wife met her current husband, Mr C, through her career in the Army.
When the parties finally separated, the children continued to live in Wodonga with the wife. Mr C began to live with them, first in Wodonga and then in Wattle Grove, a suburb of Sydney. It seems that the husband had contact with the children both in Wodonga and Sydney following separation.
Orders in respect of the children were made by the Family Court in Sydney on 20 January 1998. These orders were made with the consent of the parties. Pursuant to the orders, the children were to live with the wife. The orders also envisaged the husband having alternate weekend contact with the children, weekly telephone contact and a block of time of two weeks contact at Christmas time.
In early 2000 the wife was posted by the Army to Darwin. It will be necessary to examine this move by the wife in greater detail when I come to analyse the evidence of the parties further in a moment.
Since February of 2000, the husband has had limited face-to-face contact with the children. I think it is a fair assessment of the situation to say that he has become increasingly frustrated at this. Proceedings were commenced in the Family Court of Darwin on 5 September 2000, in which the parties sought different orders in respect of the children in the now changed circumstances of the parties, and in particular now that they were living in separate States, many thousands of kilometres apart.
As a result, on 13 December 2000 O’Ryan J made orders in respect of Christmas contact for the forthcoming Christmas period. Pursuant to these orders, the husband was to have contact to the children from
12 January 2001 until 23 January 2001. The parties were ordered to share the costs of travel for this contact equally.
After these orders the matter seems to have made slow progress in the Family Court. It seems that the matter was finally transferred in December 2001 to this court, the Federal Magistrates Court, for final hearing. Thereafter, on 17 January 2002 the husband filed an application seeking contact to the children in Moree, New South Wales, from 26 January 2002 until 3 February 2002. This was to enable the children to attend his wedding to Ms M.
The application was listed urgently before me on 22 January 2002. The husband sought orders that the parties share the costs of travel expense. The wife opposed the latter aspect of the application, citing her straitened financial circumstances as the reason for her opposition. I formed the view, following a limited interim hearing, that, due to the lateness of the application being made, it was appropriate that the husband pay for the costs of the contact.
Unfortunately, it seems, he was not in a position to do so and there was no contact as he had hoped. The children did not attend his wedding to Ms M. As a result, the husband has had no direct face-to-face contact with either J or N since January of 2001.
Issues
The matter has now been heard before me on a final basis. As I have said, the central issue is how the costs of the contact is to be divided between the parties. Other issues which must be addressed include the following:
·what are the appropriate periods of contact each year;
·how should arrangements for contact be made;
·what is the best means for the parties to communicate with one another in respect of those arrangements to ensure that they occur;
·what specific issues orders should be made in respect of the children.
Evidence
It is now appropriate to turn to consider the evidence of the parties in more detail.
Neither party was represented by counsel at the hearing before me on 29 July 2002. Arrangements were made for the husband to attend the proceedings by way of a video link from the Family Court at Sydney.
The husband relied on the following affidavits:
1)one of himself filed 8 July 2002,
2)a statement of his financial circumstances filed 8 July 2002,
3)an affidavit of his current wife, Ms M, filed 8 July 2002,
4)an affidavit of his former solicitor, Ms R, filed 31 May 2002.
Of these witnesses, only the husband himself gave additional viva voce evidence and was briefly cross-examined by the wife.
The wife relied on the following affidavits:
1)two affidavits of herself filed on 5 September 2000, and 8 July 2002;
2)a statement of her financial circumstances filed on 16 July 2002.
The wife gave some additional evidence and was cross-examined by the husband.
In most regards I found both of the parties to be basically truthful witnesses. They each made no bones about the difficulties they have in communicating with one another. Sadly, their relationship is one characterised by mutual mistrust. I gained the impression that each of them blames the other for the problems that have occurred in the past in respect of contact.
As I have said, the husband has become increasingly frustrated at what he sees as the intransigence of the wife and her opposition, both actually and tacitly, to him having any contact with the children. In the past each of them has had recourse to contravention applications against the other. I think also that this is a case that has been coloured by the resentment each of them has about child support issues.
The court process in the Family Court seems to have been slow and frustrating. These tensions have been exacerbated by the reluctance of the parties to discuss issues about contact with each other and other parenting issues concerning the children. Sadly, the parties do not have a co-operative relationship and have difficulty seeing much merit in the position adopted by the other. All these difficulties have obviously been compounded and intensified by the geographical separation of the parties, and the not inconsiderable costs involved in Mr P regularly seeing his children.
Having said these things, I have no reason to doubt that each of them is a capable and loving parent to J and N, and I have no doubt that each of them wants the very best in life for their two children. I hope that they can put their hostility for one another behind them and work together in future in respect of contact.
The wife has said that she does not oppose contact between the husband and the children. This is to her credit. However, it is easy to say such things; harder to put them into practice. Parenting, especially when parents are living apart, involves sacrifices both financial and personal. It is the children concerned who have rights in respect of contact to their parents and it is the duty of parents to fulfil those rights.
I have no doubt that the husband is deeply resentful in respect of the circumstances in which the children came to live in Darwin. In my view, the move to Darwin was not well-handled by the wife. The move has made the husband’s contact with J and N extremely difficult. Sadly, it has had the effect of bringing about a situation whereby the husband has not seen the children for over 18 months, a situation I regard as most unfortunate and not in the best interests of either child.
The wife said that she had good reason to be transferred to Darwin, and, to a large extent, it was a move that was outside her control. This may be so. However, I think that her behaviour in respect of the transfer showed a cavalier disregard for the court orders that were made on 20 January 1998 and, indeed, for the feelings of the husband. It seems to me that she gave little or no thought as to how the children might maintain their relationship with their father. The orders that were made in January 1998 allowed for alternate weekend contact. This, of course, was impossible once the children moved to Darwin.
In this day and age people are free to move around Australia as they please. We, after all, live in a democratic society. However, when a parent who has responsibility for providing the residence for a child decides to move, the best interests of the child still remain the paramount consideration as to whether or not that move should be permitted and to that extent may constrain the entitlement of a parent to do exactly what he or she wishes. The right of a parent to move has to balanced with the right of a child to regular contact with both his or her parents. Court orders are intended to be obeyed. I think, to a large extent, the wife took things into her own hands when she moved to Darwin. She did, in fact, present the husband with a fait accompli in regards to the move. It was a difficult issue and no doubt the parties had enormous difficulty in communicating with each other. The fact remains that the move was a unilateral move and occurred without reference to the husband. No thought was given as to how J and N would maintain contact with their father. The move can only have had the effect of worsening what was already a fairly poor relationship between the parties.
Sadly, this has proved to be the case. Sadly, the relationship between the parties seems to have gone from bad to worse, and disputes between them, particularly about child support and contact have become more entrenched. As a result there has only been one period of contact since the move.
One of the reasons I make these comments is in the hope that some of the bad feeling between the parties can be released and the parties can start to move on. I hope that the relationship between the parties is not one that is incapable of being remedied. As I said on Monday, each of the parties struck me as being a decent person. It is not uncommon for former spouses to have difficulty in communicating with one another, but I hope that these proceedings will help the parties to put their grievances behind them for the sake of the children.
The law
Having made these comments, I think it is now appropriate for me to briefly set out the law that is applicable to these applications and which I must apply in this case.
Applications for contact orders and specific issues orders are parenting orders. They arise under proceedings conducted under Part vii of the Family Law Act, which is the part of the Act which deals with children. Section 60B(1) of the Family Law Act sets out what are the objects of the Family Law Act. They are, if you like, the under-pinning and basis of the more specific law relating to children.
The object of the Family Law Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Pausing there, the Family Law Act creates a situation where children have rights under the Act and parents have obligations and duties towards their children to fulfil those rights.
The principles that underlie this object are set out in section 60B(2) of the Family Law Act. These principles include – except, obviously, where it would be contrary to a child’s best interests – the following matters:
1)Children have a right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married, or have never lived together;
2)Children have a right of contact on a regular basis with both of their parents and with other people significant to their care, welfare and development.
3)Parents share duties and responsibilities concerning the care, welfare and development of their children.
4)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree on all matters relating to parenting arrangements for J and N. However, to their very great credit, they have been able to agree about quite a large number of matters.
The application of these objects is subject to the provisions of section 65E, which regard the best interests of the children concerned as being the paramount consideration in the making of a determination concerning the care of children.
The Full Court of the Family Court in the case of Brown and Pederson (1992) FLC 92-271 said as follows:
Proceedings for custody or access are not to be viewed as adversarial proceedings in the ordinary sense, but as an investigation of what orders will best promote the welfare of the child.
In deciding the contact and other arrangements in respect of J and N that will best promote their best interests, the court must consider the various matters set out in section 68F of the Family Law Act. The various subsections contained in section 68F(2) comprise a list of the matters the court must consider in each case regarding a child. The matters are to be considered to the extent that each is relevant to a particular case.
As each of you can appreciate, there is an infinite variety of individual children’s circumstances. The hope is that orders can be individually tailored to each child’s circumstances and the circumstances of his or her parents, in order to ensure that the result that is in the best interests of the child is achieved. The matters that are to be taken into account under section 68F(2) are:
1)the wishes expressed by any child concerned;
2)the nature of the relationship between the child with his or her parents;
3)the likely effect of any change in the child’s circumstances;
4)the practical difficulty and expense of a child having contact 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;
5)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
6)the child’s maturity, sex and background;
7)the need to protect the child from physical or psychological harm;
8)the attitude of the parties to the responsibilities of being a parent;
9)any family violence that may involve the child or a member of the child’s family;
10)whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
I now turn to consider each of these matters in more detail, and subject to their relevance in this particular case.
The wishes of the children
The wife gave some evidence about the personalities of J and N, and I believe her evidence. J, she said, is quite emotional and sensitive. However, N is more outgoing and, in her mother's words, “… goes for it”. J was apparently quite reticent about going to New South Wales in early 2001 for the last contact visit. However, as the older child, he went along to support N who was very excited about the holidays. The children are quite close together in age and tend to support one another.
To her credit, I think, the wife indicated that the holiday went well and the children enjoyed themselves. So this was not a case where the wife sought to indicate to me that the contact had been a disaster and the children had not enjoyed themselves, or that the children were resistant to having contact with their dad. That is a good thing. Accordingly, I have no reason to believe that the children do not wish to have contact with their father.
The nature of the relationship between the children, their parents and other significant people
In this context, it is a fairly lengthy period of time since the husband saw the children last. However, I have no doubt that the children have a significant relationship with him. I have no doubt that Mr P loves J and N very much. For their part, the children have had some telephone contact with their father, although I appreciate that at times when telephone calls have been made they have been preoccupied with television programs and the like. However, this is not to understate the importance of the relationship between the children and their father.
In my view, it is important for their future development that the relationship between J and N and their father be maintained. Children have the potential to gain much from their fathers, and from knowing and loving their father during their lives. Without wishing to sound trite, the relationship between a child and his or her father is one of the most important of human bonds. The children are entitled to know their father during the course of their lives. It would be tragic if, during their immaturity, they were deprived of the opportunity of developing this central relationship in their lives and, upon attaining their maturity, came to look back with regret at having lost the opportunity to have a close bond with their father.
As I have said, there is no evidence to indicate that the children have not, in the past, enjoyed time spent with their father. The husband has remarried. He and Ms M plan a child. It is important that J and N remain in contact with their father and any future half-sibling they may have. Similarly, it is important for them to have the potential to have at least some relationship with their older half-sibling, K.
The practical difficulties and expense of a child having contact 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
This seems to be the central issue in this case. The costs of travel between Darwin and Sydney are considerable. It will, of necessity, be a heavy burden to each of the parties to ensure that J and N maintain contact with their father. A burden that they must each bear in order to discharge their obligation to J and N to allow them to maintain their relationship with their father.
The subsection with which I am dealing, which I read out verbatim, speaks of the child’s right to maintain personal relations and direct contact with both parents. It is my duty, as far as I can, to enforce that right on behalf of the child concerned. I must apply the law in what I think is a commonsense way, bearing in mind the reality of the situation and the financial circumstances of each of the parties.
In determining how the financial burden should be borne between the parties, it will be necessary for me to contrast their respective financial circumstances. I am satisfied that each of the parties has made a full and frank disclosure of their current financial circumstances.
The husband is employed as a manager by P S. He earns a salary that amounts to $82,264 per annum, which equates to $1582 per week. He is able to package his salary and receives an amount of $230 per week or $11,960 per annum by way of a payment towards his mortgage. His employers also provide him with a car which he is entitled to have for some personal use. It is of some benefit to him that he is able to salary-package and, as I understand it, save some tax. Ms M, his wife, is not working. The husband’s major expenses each week are as follows:
Income tax
$ 383.00
Child support for J and N
$ 250.00
Child support for K
$ 97.00
Mortgage payments
$ 322.00
Car loan
$ 73.00
Insurance other incidental expenses
$ 77.00
TOTAL
$1204.00
He gives no breakdown of his living expenses for food, electricity and the like, but given the fixed expenses outlined above, I accept that his weekly finances are stretched from time to time. He and Ms M own a house worth about $300,000. It is subject to a mortgage of $170,000 or thereabouts. The husband has no savings to speak of.
The wife is a soldier with the Royal Australian Army. She receives a gross weekly salary of $823 which equates to $42,796 per annum. Her evidence to me was that, with allowances and the like, her salary is about $46,000 per annum. As indicated, she receives child support of $252 per week, or $13,104 per annum, from Mr P. She also receives a modest amount of Government Family Assistance of $30.00 per week.
Her husband, Mr C, is in receipt of a Veteran’s Pension of $250 per week. That pension is his entitlement as a result of injuries which he received on regular service and it seems there is no prospect of him returning to the workforce.
The income coming into the C family each week, including child support, is $1364 per week, which is somewhat less than the income coming into Mr P's household. The wife’s major expenses are as follows:
Income tax
$196.00
Contribution towards superannuation
$ 41.00
Her and Mr C’s mortgage
$228.00
Insurance
$ 40.00
Credit card debt
$ 44.00
In her statement of financial circumstances she indicated that food, electricity and water expenses for the family amounted to $200 per week.
In my view, and as the evidence subsequently revealed, this was a gross underestimate of her expenses and I have no doubt that the real expenses in respect of food, electricity and water and so on is much closer to a sum of $600 per week. Accordingly, I calculate her weekly expenses as being, at the minimum, about $1150 per week.
I also accept that there are many and varied unforeseen expenses associated with the care of two children of J and N’s age, and I also bear in mind that the wife has a legal duty to financially support her
2-year old daughter, J.
So the situation in the C household is that there is one breadwinner, the wife, who receives a modest salary. Her husband is in receipt of a subsidised Government benefit and the two of them have to support three children on their income.
In the past, Mr and Mrs C were entitled to subsidised housing as a serving and former member of the Defence Forces. However, they have renounced their entitlement to this subsidy due to their decision to buy their own home. People are entitled, of course, to pursue their financial and personal ambitions in respect of wanting to own their own home. It is a common wish amongst people to own their own home, and it is, in the long run, financially prudent to own real estate.
However, in the past, the wife indicated, she had the capability and was willing to pay half of the children’s airfares for contact. This being predicated on the basis that she received subsidised housing. However, as I indicated earlier, she now indicates that given that she no longer receives such a housing subsidy, she can contribute only 10% towards the costs of the children’s airfares for contact.
In terms of the home that she and Mr C own, it is worth about $250,000. The mortgage currently on the property is about $223,000, so their equity in the property is a fairly modest one. I was told, in the wife’s evidence, that the equity was obtained as a result of monies received by Mr C when he left the Army.
Obviously one of the central issues is the actual cost of the airfares from Darwin to Sydney and return. I did not have any formal evidence from either of the parties in respect of this important matter. However, I was told that the cheapest return airfare for a child of either N or J’s age, return Darwin/Sydney, is about $590. The most expensive, that is if you turn up at the airport and book on the day of travel, is $1500 return. This equates with my own experience gained from having sat on similar cases to this one previously.
I was not provided with any information as to the cost of tickets purchased through Virgin who are now, as I understand it, flying into Darwin from time to time. The parties agree that there should be two trips each year for contact, so calculating the cheapest airfares and the most expensive airfares, the range of likely cost is between $2360 to $6000 per year. Given the financial circumstances of each of the parties, as I have outlined them, I accept that these are significant sums of money for each of them.
However, I have formed the view that the husband is markedly better off financially than the wife. His salary is nearly double hers. He is also able to salary-package and has the use of a car. He has a significant interest in his home. Having said that, I also accept that he has significant responsibilities for child support.
The child support is calculated pursuant to a formula set out in the Child Support Assessment Act. It is a difficult situation that he is in where he has to maintain three children from two previous relationships. However, I am not at liberty to look behind the Child Support Assessment in these proceedings.
I think it is also relevant that I bear in mind that this matter is before the court because of, substantially, the decision of the wife to relocate with the children to Darwin, a decision which I believe she made independently of the husband. The wife and Mr C have chosen, for quite legitimate reasons, to purchase their own home. This has reduced the wife’s weekly disposable income and made it impossible for her to keep to her original proposal to pay for half of all airfares for contact. These two matters are important matters which I believe the justice of the situation requires me to take into account.
In my view, both parties have some capacity to contribute towards the costs of contact. In order for the children to see their father on two occasions each year, both parties will have to make significant financial sacrifices. Sadly, for the reasons I have provided, this is the lot of being a parent. In my view, given the discrepancy between the parties’ income, it is appropriate that the wife contribute approximately 30% to the anticipated costs of each contact visit.
At this stage, working on the lowest anticipated fare of $2,360 for four return trips each year, 30% of the lowest anticipated fare amounts to the sum of $354 per trip that the wife is liable to pay. The husband seeks the right to deduct this amount from his child support.
As I have explained, this is not an option open either to him or to the court. Pursuant to section 98B of the Child Support Assessment Act, he is entitled to apply firstly to the Registrar of the Child Support Agency and then, if appropriate, to this court or the Family Court to seek to argue that special circumstances exist in respect of the high costs of the contact between him and the children and as a result to apply for a departure from the administrative assessment of the child support. I cannot go behind the Child Support Assessment in these proceedings.
I think it is appropriate, given past difficulties between the parties, that one party book the necessary tickets and that there be a proviso in the order that the cheapest possible fares are booked well in advance. I think, in the circumstances, that it is appropriate that the husband do this and that it be done 35 days in advance, and that he provide details of the booking, the flights and the expense to the wife in writing 35 days prior to the travel. Thereafter, I propose that the wife have 14 days to pay the 30% off the costs involved.
The capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs
In my view, both parties are capable of providing for J and N’s emotional and intellectual needs.
Family violence
There is nothing to indicate that the children in this matter need to be protected from family violence or from any form of physical or psychological abuse. The parents in this case are good and loving parents.
The attitude of the parties to the responsibility of parenthood
Both parties seem, to me, to be good parents. However, it should be reinforced to each of them that it is their respective duty to foster the relationship between J and N and each of their parents. It is a positive duty. It is the duty of each of them to be positive about the other parent and to be positive about the children’s relationship with that parent.
Orders which will be least likely to lead the parties instituting further proceedings
The Federal Magistrates Court is not a happy place for parents to come. It is desirable that, as far as possible, orders should bring about an end to proceedings between the parties. Litigation is costly, not only financially but emotionally. It also has the potential to be damaging to the parenting relationship of the parents concerned and in turn have adverse consequences for their children. It is important that as far as possible the obligations and duties of the parties pursuant to orders of this court be delineated as clearly as possible so that it is not necessary for them to return to Court.
I hope that the obligations of each of the parties, pursuant to these orders, will be clear. As I have said, it is the duty of each of them to ensure that the contact, as ordered, does indeed take place.
Conclusions
The husband has sought a number of specific issues orders. To her credit, the wife agrees to the vast majority of them. They deal with education and health matters. I have made orders in respect of these matters, which I will read in a moment.
In terms of the specific duration of contact, I think it is appropriate that the children spend some time mid-year with each of their parents and that the long end of year holiday is shared between them. I bear in mind that the husband is working and gets four weeks’ annual leave. He will not be available to care for the children for the whole period of contact he proposes. I am not critical of him in that regard. In fact, he is to be congratulated that he is working, and providing for his children.
However, I think that the wife should have an opportunity for holidays with N and J, and indeed with J, in the mid-year period of each year and also at the long holiday. For that reason, I have formed the view that the mid-year holiday and the end of year holiday should be shared between the parties.
Finally, and I appreciate that I have been talking for some time now and I apologise to the parties for that, I have to bring to the attention of each of the parties the provisions of section 65DA of the Family Law Act. 65DA deals with the duty of the court to inform each of the parties of the obligations that the orders the court creates for them and the consequences that may follow if a person contravenes a parenting order.
The Family Law Act was amended at the beginning of 2000. It was amended to bring into being a scheme to ensure that parties comply with parenting orders. There was a perception in the past – whether it was a correct perception or not – that parties regularly broke parenting orders and there were no consequences for them in respect of that. As a result, the Commonwealth Parliament amended the Family Law Act and brought into existence a three-tiered scheme to ensure that orders were complied with and that parents could not flout orders without being called to account for their actions.
Section 65DA deals with the first stage of that process. That is to ensure that each of the parties know what their obligations are pursuant to the orders, and attached to the orders will be a document that sets out firstly the availability of programs to assist people to understand their responsibilities and, secondly, the fact that penalties and orders can be made to ensure that parenting orders are complied with. Post separation parenting courses are available to assist parents in understanding their obligation pursuant to Family Law Act orders.
The second and third stage of the compliance regime deals with the enforcement of orders. As I have said, in serious questions of breach it is possible for penalties to be imposed if it is found that an order has been breached without reasonable excuse. The penalties include fines and in serious cases even imprisonment.
I believe that orders that I have made are clear and that each of the parties has the capacity to understand them. The orders are intended to be obeyed. The parties are obliged to work together to ensure that there is compliance with the orders.
For all these reasons, the orders that I am going to make are as set out at the commencement of these reasons for judgment.
I also direct that a copy of these reasons for judgment be provided to each of the parties when it has been transcribed, in due course.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 9 August 2002
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