PAINE & SEAFORD
[2013] FCCA 854
•19 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAINE & SEAFORD | [2013] FCCA 854 |
| Catchwords: CHILD SUPPORT – Departure order. |
| Legislation: Child Support (Assessment) Act 1989 |
| Goode & Goode (2006) FamCA 1346 Seaford & Paine-Seaford [2008] FMCAfam 922 |
| Applicant: | MS PAINE |
| Respondent: | MR SEAFORD |
| File Number: | ADC 814 of 2007 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 9 & 10 April 2013 |
| Date of Last Submission: | 10 April 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 19 July 2013 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
PROPOSED ORDERS
Parental responsibility
The parties share equally in parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2003 SAVE as otherwise specified in these Orders and subject to paragraphs 2 and 3 herein.
The parties shall consult and endeavour to reach agreement about major long term issues in relation to the children’s care, welfare and development, such consultation to include participating in community based family dispute resolution.
In the event the parties have consulted in accordance with paragraph 2 and remain unable to agree upon a specific issue then the mother shall have sole parental responsibility in relation to the specific issue in dispute.
For the purposes of clarifying day to day parental responsibility the parent who delivers the children to school on any given morning retains parental responsibility for their day to day care until the conclusion of the school day.
Children’s living arrangements
[X] and [Y] live with the mother SAVE as otherwise specified in these Orders.
[X] and [Y] live with the father during school terms as follows:
(a)on alternate Thursdays from the conclusion of school (or 9.00am if a public holiday or a non school attendance day) until the commencement of school Friday (or 9.00am if a public holiday or a non school attendance day), recommencing on the second Thursday in each school term;
(b)on each alternate weekend from the conclusion of school Thursday (or 4.00pm if a public holiday or a non school attendance day) until the commencement of school Monday (or Tuesday in the event Monday is a public holiday or a non school attendance day), recommencing on the first Thursday in each school term;
[X] and [Y] live with the father for one half of each short school holiday period each year at times to be agreed between the parties and in default of agreement for the first half of each short school holiday period commencing at 6.00pm on the last day of school term and concluding at 6.00pm on the Saturday one week following.
Christmas School holidays
[X] and [Y] live with the father for one half of the Christmas school holiday period each year at times to be agreed between the parties and in default of agreement the children shall spend time in the care of each parent as follows:
(a)During the 2013/2014 Christmas school holidays in the mother’s care from 6.00pm on 13 December 2013 until 6.00pm on 5 January 2014 and in the father’s care from 6.00pm on 5 January 2014 until 6.00pm on 27 January 2014;
(b)During the 2014/2015 Christmas school holidays in the father’s care from 6.00pm on 12 December 2014 until 6.00pm on 4 January 2015 and in the mother’s care from 6.00pm on 4 January 2015 until 6.00pm on 26 January 2015;
(c)in the 2015/2016 Christmas school holidays and each alternate year thereafter in the father’s care from 6.00pm on the last day of school term until 6.00pm on the middle day of the holiday period and in the mother’s care for the remainder of the school period;
(d)in the 2016/2017 Christmas school holidays and each alternate year thereafter in the mother’s care from 6.00pm on the last day of school term until 6.00pm on the middle day of the holiday period and in the father’s care for the remainder of the school period until 6.00pm on the last day before school resumes;
(e)as and from 2015 the Christmas school holiday period shall be calculated to commence on the last night of the final school term and conclude at 6.00pm on the last day prior to the commencement of the new school year;
(f)in the event the school holidays include an uneven number of nights then the parent with the care of the children for the first half of the school holidays shall retain the care of the children for one extra night in that school holiday period;
(g)these Christmas school holiday arrangements are subject to the specific Christmas Eve-Boxing Day arrangements set out in paragraph 9.
The children spend time with each parent on Christmas Day each year at times to be agreed between the parties and in default of agreement:
(i)with the father:
A.from 4.00pm Christmas Day until 4.00pm Boxing Day in 2013 and each alternate year thereafter; and
B.from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2014 and each alternate year thereafter.
(ii)with the mother:
A.from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2013 and each alternate year thereafter; and
B.from 4.00pm Christmas Day until 4.00pm Boxing Day in 2014 and each alternate year thereafter.
Special occasions
The children spend time with the parent with whom they are not already living on each child’s birthday as follows:
(a)if a school day from the conclusion of school until 7.00pm; and
(b)if a non school attendance day from 1.00pm until 7.00pm;
The children spend time with the father on Father’s Day each year from 9.30am until 5.00pm.
The children spend time with the mother on Mother’s Day each year from 9.30am until 5.00pm.
In the event [Y]’s birthday falls on the same day as [omitted] (as will occur in 2016), then the following arrangements shall apply:
(a)in the event the children are in the mother’s care on that weekend, then the children will spend time with the father from 9.30am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply;
(b)in the event the children are in the father’s care on that weekend then the children shall spend time with the mother from 11.00am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply.
The children spend time with each of their parents on that parent’s birthday as follows:
(a)if a school day from the conclusion of school until 7.00pm; and
(b)if a non school attendance day from 11.00am until 5.00pm;
In the event the mother’s birthday and Father’s Day fall on the same day then the following arrangements will apply:
(a)in the event the children are in the mother’s care on that weekend, then the children will spend time with the father from 9.30am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply;
(b)in the event the children are in the father’s care on that weekend then the children shall spend time with the mother from 11.00am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply.
In the event the father’s birthday and Mother’s Day fall on the same day (as will occur in 2017) then the following arrangements will apply:
(a)in the event the children are in the mother’s care on that weekend, then the children will spend time with the father from 11.00am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply;
(b)in the event the children are in the father’s care on that weekend then the children shall spend time with the mother from 9.30am until 5.00pm on the Sunday in lieu of any other order that would otherwise apply.
In the event the Easter weekend does not form part of the school holidays the children spend time with each parent as follows:
(a)with the father:
(i)in each alternate year from the conclusion of school (or 4.00pm in the event of a non school attendance day) on Maundy Thursday until 6.00pm on Easter Saturday commencing 2015; and
(ii)in each alternate year from 6.00pm Easter Saturday until the commencement of school (or 9.00am Tuesday in the event of a non school attendance day) commencing 2014;
(b)with the mother:
(i)in each alternate year from 6.00pm Easter Saturday until the commencement of school (or 9.00am Tuesday in the event of a non school attendance day) commencing 2015; and
(ii)in each alternate year from the conclusion of school (or 4.00pm in the event of a non school attendance day) on Maundy Thursday until 6.00pm on Easter Saturday commencing 2014.
The children spend further time with the father as may be agreed between the parties from time to time.
Telephone Communication
The children communicate with the father by telephone each Monday and Wednesday between 7.45-8.00pm for up to 15 minutes in total on each occasion with the mother to facilitate the children telephoning the father on his landline number.
The children communicate with the mother by telephone during each week of the school holidays when they are in their father’s care each Monday and Wednesday between 7.45-8.00pm for up to 15 minutes in total on each occasion.
The parties may vary the week nights for the children’s regular telephone communication as may be agreed between the parents, taking into account the children’s other arrangements or activities.
Both parties facilitate any request from either child to telephone the other parent at any reasonable time.
Handover arrangements
Where possible all handovers take place by the children being delivered to or collected from school and where that is not possible, handovers take place inside the [S] Police Station.
In the event either child is unwell and appears unlikely to be attending school on any day that they are returning to the mother’s care (ie on a Monday or Friday) then:
(a)the father notify the mother on the evening prior by text message no later than 9.00pm; and
(b)the child shall then remain in the father’s care across the school day with a handover to take place at the conclusion of the school day at approximately 3.30pm inside the [S] Police Station.
In the event the child has recovered sufficiently to attend school the father notify the mother accordingly by text message no later than 8.00am.
Additional orders
The children be enrolled at [A] High School, commencing for [X] in 2014.
The father is restrained from removing either child from school on any day when they are living in the mother’s care without the prior consent in writing of the mother SAVE AND EXCEPT in the case of a medical emergency where the school has been unable to contact the mother.
Each party is restrained from abusing or denigrating the other parent to, or in the presence of, the children and from allowing any other person to do so.
Each parent shall speak respectfully to the other parent and about the other parent when in the presence of the children.
Health and medical issues
Each parent notify the other parent in the event either child is hospitalised or is required to attend at hospital for any diagnostic or procedural treatment.
In the event either [X] or [Y] are hospitalised, either parent is at liberty to attend with the child.
In the event either child consults with a medical practitioner, including their G.P., each parent shall ensure that all relevant medical information is provided to other parent promptly, including any diagnosis and treatment or medication that may be prescribed.
Each parent shall do all things and provide all permissions necessary to authorise their G.P. to exchange or release information regarding any medical treatment or diagnosis in relation to either child.
Co-parenting communication
Each parent notify the other in the event of any change to their contact details, including home address, email address and mobile telephone numbers.
The parties shall consult by text message or email prior to enrolling the children in any extracurricular activities that may impact upon the children’s time in the other parent’s care.
Interstate and overseas travel
Each party is at liberty to travel interstate with the children upon giving the other party at least seven days written notice of the proposed trip, to include full details of the itinerary, destination and contact details for the children whilst interstate.
Each party sign all documents as required to obtain passport renewals when required for the children such documents to be signed within seven (7) days of the relevant documentation being presented to them by the other parent.
The children’s passports (including any subsequently issued passports) shall be delivered up to the Family Law Courts Registry in Adelaide to be released to either parent upon the joint written request of the parties for the purpose of overseas travel, provided that the passports are then returned to the registry within seven (7) days of the children’s return to Australia.
Each party is at liberty to travel overseas with the children on the following conditions:
(a)the travelling parent give the other parent at least six weeks written notice of the proposed trip, to include full details of the itinerary, destination and contact details for the children whilst overseas;
(b)each party do all things necessary to enable the children’s passports to be released to the travelling parent, including compliance with paragraph 37 herein;
(c)the parent intending to travel overseas with the children (or either of them) shall deposit the sum of FIVE THOUSAND DOLLARS ($5,000) into the Adelaide Registry of the Federal Circuit Court of Australia at least fourteen (14) days prior to departure as security for the children’s return to Australia;
(d)the travelling parent confirm to the other parent that the funds have been deposited;
(e)the funds are to be released to the travelling parent upon the children’s return to Australia and upon the children’s passports being delivered up to the Registry; and
(f)in the event the children are not returned in accordance with the proposed itinerary then the deposited funds may be released to the non travelling parent in accordance with any order of the Court.
In the event the mother wishes to travel overseas at short notice on account of a family emergency, she shall provide as much notice to the father as possible and shall otherwise:
(a)pay the financial security into Court in accordance with paragraph 38(c) of these orders as soon as possible;
(b)provide the father with the children’s itinerary, destination and contact details as soon as possible and in any event at least 12 hours prior to departure;
(c)upon payment of the financial security the requirement for the father’s written consent or a joint written request for the release of the passports in accordance with paragraph 37 is dispensed with, NOTING that the Registry is requested to notify the father by telephone as soon as the security monies have been received by the Court.
The travelling parent shall ensure the children telephone the other parent at a reasonable time on at least two occasions each week.
Each party provide the other with at least 28 days notice of ay intention to apply for any further passport for either child (other than renewal of their Australian passports) and provide a copy of the application form to the other parent.
Child Support
Pursuant to s.117(2) of the Child Support (Assessment) Act 1989 that in addition to the Child Support Assessment that applies each year the father do pay further Child Support as follows:
(a)for the period 1 January 2013 until 30 December 2013 the sum of $250 per child, such sum to be paid as a lump sum to the Child Support Agency on behalf of the mother on or before 30 August 2013;
(b)thereafter the sum of $250 per child per calendar year, commencing 1 January 2014 and to conclude in the year each child completes her high school education, such amount to be paid as a lump sum to the Child Support Agency on behalf of the mother on or before 30 January each year.
All proceedings are otherwise dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Paine & Seaford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 814 of 2007
| MS PAINE |
Applicant
And
| MR SEAFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Paine and Mr Seaford have two daughters, [X] who is 12 years of age and [Y] who is nearly 10 years of age.
The parties were engaged in extensive litigation during 2007 and 2008 culminating in a trial. Final orders were pronounced by the Court on 29 August 2008. Unfortunately, the parties remain in conflict over their parenting responsibilities. The interpretation of the Court orders has also led to further conflict and the current litigation between the parties.
Both parties now ask the Court to clarify aspects of the earlier parenting orders more precisely in order to minimise any areas of potential disagreement in the future. The parties remain unable to communicate effectively and seek orders to resolve issues in relation to choice of school, medical issues and the children’s extracurricular activities.
In addition, the mother proposes that she now have sole parental responsibility for the children, an outcome she considers will further reduce conflict between the parents. She also seeks a Child Support Departure order, to ensure the father makes some contribution to the children’s ongoing schooling and extracurricular activities.
These proceedings
The current proceedings commenced with the mother’s Application for Final Orders filed 2 March 2012 and subsequently amended by her on 20 March 2012.
The father filed his Response on 12 April 2012.
The matter came before me on 6 March 2012 when orders were made for filing of affidavits in relation to the issue of Child Support. The parties were also ordered to attend a s.11F appointment with a family consultant in April 2012, but were unable to reach any agreement at that time.
The matter was listed for further directions on 29 June 2012, but that hearing was overtaken by the parties’ immediate concerns regarding their older daughter [X]. Both parents were able to acknowledge that their poor communication had compromised their ability to respond to [X]’s emotional needs. An urgent s.11F appointment was allocated that day and following on from their attendance, orders were made for the parties to arrange urgent counselling for [X] and to participate in co-parenting counselling themselves, as recommended by the family consultant.
Ms Paine and Mr Seaford attended a number of counselling appointments through the Kids-Are-First programme and arranged [X]’s attendance with a psychologist, Mr F. They met again with the Court family consultant on 2 October 2012 but it appeared there was little improvement in the co-parenting dynamic.
A further directions hearing took place on 3 October 2012. While specific topics remained in dispute, it was anticipated that the parties may have been able to reach agreement about a range of minor issues relating to the interpretation or implementation of the existing parenting orders. Accordingly trial dates were allocated to resolve the remaining issues as follows:
a)sole parental responsibility;
b)responsibility with respect to education and future school enrolments;
c)choice of medical practitioner and better improving communication between the parents in relation to health issues;
d)the mother’s Child Support Departure Application with respect to school fees and associated costs;
e)the status of [X]’s trust account and funds held on her behalf;
f)the conditions that should apply to any future overseas travel for the children.
The trial proceeded on 9 and 10 April 2013. The mother relied upon the following documents:
a)Her Amended Application filed 20 March 2012;
b)Her Affidavits filed 2 March 2012, 20 March 2012, 3 September 2013 and 15 February 2013.
The husband relied upon the following documents:
a)His Response filed 12 April 2012;
b)His Affidavits filed 12 April 2012 and 7 February 2013;
c)His Financial Statement filed 12 April 2012.
The parties represented themselves during the course of the hearing and conducted themselves politely and respectfully at all times. Nonetheless it was very clear from the parties’ evidence and their demeanour during the hearing that there is no functional co-parenting communication between them. Both parties demonstrate an unhappy tendency to look for insult or belligerence in any communication from the other parent, rather than assuming that the other parent was genuinely concerned with an issue regarding the children’s welfare.
Both parties were sworn in at the start of the hearing and largely presented their case from the Bar table, although formal cross examination took place on substantive issues with respect to sole parental responsibility, choice of school, medical issues and Child Support. I am satisfied both parties gave their evidence honestly and to the best of their recollection. However their recollection of past events is invariably coloured by the hostility and mistrust they feel towards each other.
Despite their best efforts, few issues were resolved by agreement. In the course of the case being presented, the Court ruled on various issues regarding the interpretation of, or variation to the existing orders. At the end of that process the parties agreed it would be helpful for the Court to re-pronounce a single parenting order incorporating those aspects of the August 2008 orders that remain in force, together with the orders amended or determined at the hearing.
Legal principles
In accordance with s.65D of the Family Law Act 1975 the Court is empowered to make such parenting order as it thinks proper subject to certain limitations set out in that section.
When making a parenting order the best interests of the children are the paramount consideration (s.60CA). Section 60B sets out the objects and principles which govern the Court’s decision making responsibilities. The section focuses on the importance of parents having a meaningful role in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must consider in determining the children’s best interests. In Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60C are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. The two primary considerations are as follows:
a)the benefit to the children 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.
There are thirteen additional considerations in s.60CC(3) which must also be taken into account.[2] I must also consider the extent to which each party has fulfilled or failed to fulfil their parental responsibilities (s.60CC(4, 4a).
[2] These proceedings are determined in accordance with the legislation as it was in force at the time the Application was commenced notwithstanding subsequent amendments to the Family Law Act 1975 that occurred in 2012
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted.
The Court has already ordered that the parents will share equally in parental responsibility for [X] and [Y]. Accordingly, it is for Ms Paine to now demonstrate that the presumption in s.61DAA does not apply and that the existing order is no longer in the children’s best interests. The parties’ past history and the capacity to which they have managed to properly implement shared parental responsibility will be very relevant in this regard.
The children presently live primarily with their mother and spend substantial and significant time with their father. Neither party was pursuing any substantial variation of the existing orders, in terms of the children’s time spent with each parent.
I do not intend repeating the oral reasons delivered in the course of the hearing with respect to the myriad of minor issues ruled upon by the Court. It is in the children’s best interests to reduce the potential for conflict between their parents, thereby protecting [X] and [Y] from the uncertainty and distress that such conflict brings. This was the basis upon which the various rulings were made.
Specific orders were made to deal with the situation where birthdays fall on the same day as Father’s Day in any given year. Those orders prioritised the position of the parent who did not have primary care of the children across the weekend, on the basis that other celebrations could be held on the day prior, for example.
Neither party sought any order in relation to 2017, when the father’s birthday apparently clashes with [omitted]. In hindsight however, I conclude that the same arrangements should apply, so that handover times are clarified.
I have taken into account the relevant s.60CC considerations but do not intend addressing each factor separately. I will now set out my reasons and decisions in relation to the issues still in dispute between the parties.
Parental responsibility
Both parties sought an order for equal shared parental responsibility in 2008. The Court accepted the parties’ position in that regard notwithstanding a finding that the father had behaved in ways that were threatening and aggressive and which had impacted upon the children’s welfare, both directly and indirectly.[3]
[3] Seaford & Paine-Seaford [2008] FMCAfam 922, published 29 August 2008, paragraph 75
There is no doubt that communication between the parties has remained totally dysfunctional. Both Ms Paine and Mr Seaford need to take responsibility for their own conduct, both past and present, that has allowed this situation to remain as it is.
The mother argues that the conflict is so entrenched that it is now in the children’s best interests that she be granted sole parental responsibility, given that she has primary care of the children. Ms Paine acknowledged that she also played a role in the communication difficulties, but did not see any way forward, in terms of improving the communication between the parties.
The father argues that the mother is the party refusing to communicate or co-operate. He referred to the s.11F Memorandum dated 2 October 2012 where Mr T commented as follows:
“•… communication between them presented as more strained than previously. Both present as highly entrenched in their dispute with no goodwill towards the other. The dynamic currently appears to be one of control. While there is no doubt that both have contributed, and still contribute, to the dynamic, on this occasion Ms Paine presented as the more intransigent.
•Communication (or more realistically refusal to communicate) appears to be the central issue. It was agreed that Mr Seaford has attempted to communicate with Ms Paine. Ms Paine also agreed that she does not wish to communicate with Mr Seaford. This currently appears to be an insoluble issue.”
It appears the parties ceased using the Communication Book sometime ago, despite a Court order in that regard. From the very limited excerpts provided to the Court, it is clear that the father criticised and denigrated the mother in some of his entries, rather than focussing on the children. While it may be the case that the mother is the party now refusing to participate in direct communication with the father,
Mr Seaford’s past behaviour has significantly undermined the level of trust and co-operation between the parties.
At the end of the day, this is not a question about rewarding or penalising a parent by allocating or withdrawing parental responsibility from them. It remains a question of what order will be in the children’s best interests.
The children love both parents and have a strong, meaningful relationship with each of them. Mr Seaford seems to believe the mother is solely motivated by financial gain but I reject this view. I have no doubt that both Ms Paine and Mr Seaford have a great deal to offer [X] and [Y] and would each make decisions designed to promote the children’s best interests. I am equally certain that the parents may reach a different conclusion in relation to virtually any aspect of the children’s welfare. Indeed, based on past history, one could conclude that the parties would inevitably reach a different conclusion about any given issue.
There is no doubt that the parties’ chronic inability to negotiate and reach agreement in relation to the children must be impacting upon [X] and [Y]’s emotional welfare. Fortunately the children have not been exposed to their parents arguing about such issues at handovers, but their parents are nonetheless routinely distracted by these disputes and are therefore less emotionally available to their children.
There are certainly occasions when both parents have failed to properly consult with the other parent or keep the other parent advised regarding matters relating to the children’s health and welfare. I am concerned that if an order was made granting Ms Paine sole parental responsibility for the children, that she would not consult with the father or keep him advised about issues relating to the children’s welfare, because she finds communicating with the father so difficult. At the same time, it is not in the children’s best interests to leave their parents reliant on the Court process with respect to decisions regarding the children’s future care.
I conclude that the best outcome is one where the parents retain joint responsibility, with an ongoing obligation to consult in relation to major long term issues regarding their children. This consultation will include a requirement to participate in family dispute resolution, if need be. However, if the parties remain deadlocked, then I conclude that as the children’s primary caregiver, the mother should be the parent authorised to determine the issue in dispute.
This decision should not be read as a criticism or endorsement of either parent, given that both parties have contributed to the present situation. It is a purely pragmatic decision, designed to provide a workable decision making process. The parties are still required to consult together and to take into account the other parent’s point of view.
[X]’s high school enrolment
The mother proposes that [X] attend [A] High School in 2014. The father does not agree with the mother’s chosen high school. He initially proposed that [X] attend [S] High School, with an alternative option being [B] High School. At the time of trial, Mr Seaford clarified that his preferred option was [B] High School.
Both parties provided the Court with detailed information in relation to the location of the school, amount of travel involved, relevant curriculum and associated costs. Both parents are able to put forward perfectly reasonable arguments as to why they consider their preferred school is the best option both for [X] (and eventually [Y]).
The father also referred to information on the MySchools website relating to relative NAPLAN results, although he did not provide any detailed information to the Court in that regard. From my understanding, the MySchools website also makes it clear that it is not a tool for simply comparing whether one school is “better” than another school. Rather, it presents a range of information relating to each school’s situation, to better inform parents.
At the end of the day my decision on this issue is guided by the children’s best interests. The children live in the primary care of their mother. Inevitably she is the parent who will provide more of the ‘hands on” engagement with the school across the years. [X] and [Y] will be travelling to and from their mother’s home on seven out of every ten school days. The travel arrangements for the children to [A] High School are less onerous than the travel arrangements to [B] High School. These are both significant factors that weigh in favour of the children attending [A] High School.
Health issues and choice of medical practitioners
The family consultant, Mr T, commented that it may be appropriate for the children to have one nominated doctor rather than attending at two family clinics, as presently occurs. In my experience, it is not unusual for parents to consult with separate family doctors when they live some distance apart. I see no need to make an order in this regard.
The parties have apparently requested that their doctors exchange information about any treatment or medication prescribed for the children, which is extremely helpful.
The Court cannot order a doctor to provide information, or to consult with another doctor. The doctors may be happy to consult together if requested, but it is a matter for them to determine how they perform their professional obligations. It still remains the responsibility of the parents to ensure that all relevant medical information regarding the children is provided to the other parent in a timely manner. The solution is for the parents to share and facilitate the exchange information arising from any such consultations, not for the Court to mandate the choice of doctor.
Overseas travel and passports
The Court has ruled on various aspects of future overseas travel for the children, including a reduction in the amount of financial security required. Nonetheless, the parties remain in dispute about who should hold the children’s passports. The father says the passports should remain with the Adelaide Registry whereas the mother argues she should hold them.
This dispute suggests Mr Seaford still distrusts the mother to the extent that he believes the mother may take the children overseas without his knowledge. I do not believe Ms Paine has any such intention. However, in my view, the existing order is a minor inconvenience to the mother and provides some reassurance to the father. It has no impact on the children’s best interests, who are still able to travel overseas to visit their extended family. Accordingly the children’s passports will continue to be held by the Registry.
In the course of the hearing I ruled that the existing financial security should be reduced to the sum of $5,000. I also varied the requirements that will apply to any emergency overseas travel, to remove the requirement for Mr Seaford’s written consent when the travel is to be undertaken at very short notice. In such circumstances it is sufficient that the Registry contact Mr Seaford to confirm that Ms Paine has paid in the security deposit.
[X]’s trust fund
The parties established a Trust fund for [X] shortly after her birth. Ms Paine argues those monies should now be released to assist with the children’s educational expenses. The father opposes the application, arguing the fund was established to provide for [X] as a young adult, not to assist with her education. I am not satisfied there is any basis for me to now disrupt the Trust established for [X], in the absence of agreement between the parties in their capacity as joint trustees.
Mr Seaford’s distrust of Ms Paine is so intense that he does not believe she would use the funds to pay for educational expenses. I reject his concerns in that regard. Mr Seaford would prefer to retain sole responsibility for the fund and to remove Ms Paine as a joint trustee, but I see no basis to make this order either. I note the father’s evidence that he has also set up a similar fund for [Y]. He is the sole Trustee of this fund. There is no reason to vary this situation, either.
Child Support departure application
Ms Paine seeks a departure order pursuant to s.117 of the Child Support (Assessment) Act 1989. I accept the application is properly before the Court, in accordance with s.116(1)(b) of the legislation. It is clearly appropriate for the Court to determine this application, given the Court is ruling on other issues in dispute between the parties.
Under the current Child Support assessment Mr Seaford is presently paying $56 per month in child support for both children. To obtain a departure order, the Court must be satisfied that one of the grounds for departure listed in s.117(2) exists. Ms Paine argues that the cost of maintaining the children is significantly affected by the additional costs associated with their education. She sets out her summary of those costs in her Affidavit filed 20 March 2012. I disregard her claim for costs such as Out of Hours School care, but nonetheless, it is clear that the children’s costs, in terms of school expenses, [extracurricular activities] and the like, are significant.
Obviously both parties have their own individual costs regarding the children. The children are fed, housed and clothed by each parent. They have school uniforms at both parents’ homes, which is a sensible arrangement. Mr Seaford argues he makes other contributions to the children’s welfare, such as maintaining family health insurance. It is not a situation where the husband’s only contribution to the children’s financial support arises through his Child Support payments. Nonetheless, his Child Support contribution is very modest.
It is well understood that the Child Support legislation was designed to include an allocation for children’s day to day expenses, including the usual school related expenses and costs associated with extracurricular activities. Accordingly s.117(2) requires a parent to demonstrate that there are special circumstances that justify moving away from the Child Support formula.
I am not satisfied that Ms Paine has met that criterion in relation to s.117(2)(b), on the evidence before me. While s.117(2)(b) is not necessarily limited to private school fees, there is nothing exceptional in the schooling costs she is paying, nor in the range of extracurricular activities that the children attend. The costs of these activities are significant, but not so high as to justify a departure order pursuant to s.117(2)(b), in my view.
Section 117(2)(c) goes further however. Amongst other factors, it requires the Court to consider whether the administrative assessment of child support results in an unjust and inequitable determination, taking into account the parties’ income, property and financial resources.
Both parties have modest savings remaining from their property settlement and it is certainly not the case that either party is expected to devote all of their savings towards the children’s expenses. Clearly the mother has utilised her savings to meet her ongoing commitments.
Mr Seaford has also called upon his investments to subsidise his expenses from time to time and his savings have decreased accordingly.
Nonetheless the father does have limited funds available to him.
Mr Seaford resides with his mother and has no accommodation expenses to speak of. This is a further indirect financial resource which is of considerable benefit to him.
Taking into account all of these matters, and the very limited Child Support assessment that currently applies, I conclude that the father has sufficient funds available to him that he should be called upon to make a further modest contribution to the cost of supporting the children.
Taking into account all of the evidence before me, I conclude that there should be a departure order to the extent that Mr Seaford pay the additional sum of $250 per child per year, in addition to any administrative assessment in operation, to commence forthwith. This is much less than the mother was seeking, but will nonetheless provide some assistance towards the children’s expenses.
I have considered whether to order that this further Child Support amount be paid direct to the children’s schools or activities, but on balance, such an arrangement may well lead to further uncertainty, miscommunication and conflict between the parties.
While the father believes the mother is only interested in her own financial gain, the Court does not share Mr Seaford’s distrust of Ms Paine. The funds due and payable under this departure order should be paid to the mother through the Child Support Agency, as occurs with the ongoing monthly Child Support payments. The only difference is that this amount should be paid as a lump sum at the commencement of each school year, to be paid to the Child Support Agency no later than 31 January each year.
Given that the mother’s application has been before the Court since 2012, I conclude the departure order should be backdated to 1 January 2013 with the payment for this financial year to be made by 30 August 2013.
I set out the proposed orders at the commencement of these Reasons and will adjourn the proceedings to enable the parties to speak to the draft order.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 19 July 2013
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