Parris & Parris
[2021] FedCFamC1F 176
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parris & Parris [2021] FedCFamC1F 176
File number(s): SYC 4604 of 2020 Judgment of: CHRISTIE J Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the children have not spent time with their father – Untested allegations of family violence – Orders made for the father to spend supervised time with the children prior to his return to the United Kingdom.
FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – Where the father has capacity to meet the mother’s financial shortfall for four weeks only – Orders made for one lump sum payment to represent four weeks of periodic maintenance.
FAMILY LAW –INTERIM COSTS – Limited evidence related to the provisions of the Family Law Act 1975 (Cth) s 117(2A) – Court to exercise power pursuant to s 79 of the Family Law Act 1975 (Cth) – $40,000 partial property settlement made in favour of the mother for payment of legal costs
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 77, 79, 80(1)(h) Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
SS & AH [2010] FamCAFC 13
Stein & Stein (2000) FLC 93-004
Division: Division 1 First Instance Number of paragraphs: 111 Date of last submission/s: 1 November 2021 Date of hearing: 22 October 2021 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Kells The Lawyers Counsel for the Respondent: Mr Apelbaum Solicitor for the Respondent: McGirr Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4604 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARRIS
Applicant
AND: MR PARRIS
Respondent
LEGAL AID NEW SOUTH WALES
Independent Children’s Lawyer
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS:
1.That X (born … 2010), Y (born … 2012) and Z (born … 2017) (“the children”) live with the mother.
2.That the children spend time with the father as follows:
(a)On:
(i)Saturday 13 November 2021 for three (3) hours; and
(ii)Saturday 20 November 2021 for three (3) hours;
(iii)Thereafter each Saturday from 10.00am to 3.00pm;
(iv)Christmas Eve 2021 from 10.00am to 3.00pm;
(v)Tuesday 28 December 2021 from 10.00am to 3.00pm.
With such time to be supervised.
(b)That for the purposes of order 2(a):
(i)The supervision service agency be P Contact Centre (“the supervision service”);
(ii)Within 48 hours of the date of these orders, the parties shall contact the supervision service and request an appointment for intake regarding supervised time forthwith;
(iii)The parties shall attend for assessment if requested at the times and places appointed by the supervision service;
(iv)The parties shall attend any appointments made by the supervision service for supervised time;
(v)The parties shall ensure that the children attend all appointments made by the supervision service for supervised time;
(vi)The parties shall comply with all reasonable rules of the supervision service;
(vii)The parties shall comply with all reasonable requests or directions of the staff of the supervision service;
(viii)The location of such time shall be arranged in consultation between the parties and the service, noting that it may occur at either a public venue or residential premises;
(ix)The parties shall seek a supervision report in relation to each supervised visit;
(x)The father shall pay the costs of the supervision service.
(xi)The parties shall request the supervision service provide reports as promptly as possible to the parties, including the Independent Children’s Lawyer.
3.That Order 2 of the orders made 16 July 2020 be varied to discharge Order 2(i).
4.
That on or before 10 November 2021 the father pay the sum of $4,776 by way of
spouse maintenance, such sum to be paid to the mother’s Commonwealth Bank Smart Access Account BSB … Account Number …41 and to be net of any transfer or other bank fees.
5.That within 60 days the father pay to the trust account of the mother’s solicitors, by way of partial property settlement, the sum of $40,000.
6.That the Application in a Case filed 10 May 2021 and the Response to an Application in a Case filed 2 August 2021 are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parris & Parris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for interim financial and parenting orders.
On 10 July 2020, Ms Parris (“the mother”) filed an Initiating Application.
On 17 August 2020, Mr Parris (“the father”) filed a Response to Initiating Application.
The mother’s Application in a Case for interim financial and parenting orders filed
10 May 2021, came before me on 22 October 2021. The father filed his Response to an Application in a Case on 2 August 2021. Both parties sought the orders contained in their outline of case document.At the interim hearing on 22 October 2021 the mother relied on:
·Amended outline of case document and minute of orders sought filed 12 October 2021;
·Affidavit of Ms Parris filed 12 October 2021;
·Affidavit of Ms C (“the maternal grandmother”) filed 12 October 2021;
·Financial Statement filed 17 September 2021; and
·Tender bundle.
At the interim hearing the father relied on:
·Outline of case document and minute of orders sought filed 20 September 2021;
·Affidavit of Mr Parris filed 16 September 2021;
·Affidavit of Mr Parris filed 2 August 2021; and
·Financial Statement filed 17 September 2021.
At the interim hearing, the Independent Children’s Lawyer (“ICL”), Ms Neilson relied on:
·Outline of case document filed 20 October 2021;
·Child Dispute Conference Memorandum (“CDC”) dated 11 November 2020
(Exhibit 2); and·Tender bundle.
PROCEDURAL HISTORY
The parties filed with the Family Court of Australia (as it then was) a proposed consent order prior to separation, in anticipation of their move to the United Kingdom as an intact family. That proposed set of orders was signed by them on 13 December 2019 and recorded the children’s habitual place of residence as Australia. A requisition was raised in respect of the proposed orders in January 2020 (after the family had departed Australia). The orders were never formally made.
Following separation in June 2020, as set out above, proceedings were commenced.
Orders were made by consent by Loughnan J on 16 July 2020.
An ICL was appointed pursuant to orders dated 18 August 2020.
BACKGROUND
The children the subject of the application are X (born in 2010, age 11), Y (born in 2012, age 9) and Z (born in 2017, age 4) (“the children”).
The parties married in 2014 and separated on or about 17 June 2020.
The family moved to the United Kingdom for the father’s work arriving there in mid January 2020.
The father is contracted to D Company from 1 December 2019 to 30 November 2022.
At the time of separation, the mother and children returned to Australia and the father remained in the United Kingdom to fulfil his contractual obligations.
In October 2020, the father travelled to Australia to see the children. After mandatory quarantine, he remained in Australia until sometime in January 2021. He did not spend time with the children.
On the date of this interim hearing counsel for the father indicated his client was en route to Australia where he would quarantine for two weeks.
The assets of the parties as set out in their respective Financial Statements are:
Asset
Owner
Value
E Street, Suburb F, NSW
Joint
(F) $1,400,000
(M) $1,850,000
G Street, Suburb H, VIC
Joint
(F) $500,000
(M) $525,000
J Bank account #...17
Father
$21,174
J Bank account #...40
Father
$1,184
Motor Vehicle 1
Father
$45,000
Motor Vehicle 2
Father
$33,000
Household Contents
Father
$2,000
Motor Vehicle 3
Mother
$27,500
CBA Smart Access Account #...41
Mother
$8,200
Westpac bank account #...61
Joint
$10.87
Westpac bank account #...88
Joint
$7.09
J Bank account #...40
Joint
$1626.02
Superannuation
Super Fund 1
Father
$208,864
Super Fund 2
Father
$14,000
Super Fund 3
Mother
$19,546
The liabilities of the parties as set out in their respective Financial Statements are:
Liability
Owner
Value
Home Mortgage
Joint
(F) $1,099,330
(M) $1,193,982
Mortgage
Joint
(F) $570,036
(M) $469,926
Westpac Credit Card
Joint
(F) $29,195
(M) $30,776
Personal Loan
Father
$45,560
Personal Loan
Mother
$20,000
Personal Loan
Mother
$26,532
Legal fees
Mother
$10,286
The mother has been a homemaker and parent. The father has provided the income for financial support of the family.
The father has income from his contract with D Company and the parties’ investment property.
ISSUES IN THE PARENTING MATTER
The nature of the competing proposals framed the issues for consideration which were:
·Should the existing orders for telephone communication remain or be discharged?
·Has the mother engaged in conduct which has failed to support or actively undermine the children’s relationship with their father?
·Is there a risk to the children in spending supervised time with the father?
·If there is a risk, can that risk be ameliorated?
·If there should be supervised time between the father and the children, what frequency is appropriate?
·If there is supervised time between the father and the children, should it be professionally supervised?
The mother gave evidence that the father had denigrated X, calling him derogatory names and making crude remarks. Further, she said that the father had hurt X while wrestling and encouraged the other children to punch X. The maternal grandmother gives similar evidence. The mother also gives evidence of an occasion on which she says the father kicked X in the calf and hit him over the head with an open hand.
The mother says that on 18 December 2019 the father called X a “Mumma’s boy” and a “twat” and pushed X while leaving the room causing X to fall backwards onto a couch. Her affidavit further sets out that after the move to the United Kingdom X reported to her that his father had held him down and told him “you [the mother] do bad things too”. The father says his comments to X have been more in the nature of “stop being a sook” or “stop being a girl”.
The maternal grandmother says she has witnessed the father taunt X calling him a “girl” or a “pussy” and saying, in her presence, “you better not be gay or I’ll flog ya”.
The mother says that X was prescribed melatonin to assist him with sleep prior to the move to the United Kingdom. She says X became anxious while in the United Kingdom and she consulted a doctor who indicated X was likely stressed.
The mother’s affidavit material raises concerns about whether the father has exposed the children to danger, for example, by recklessly ignoring safety fences or leaving the children unattended. On one occasion the mother says the father, after drinking, jumped off a waterfall while holding Y. While in the United Kingdom, the mother says the father drove recklessly while she and the children were in the car, colliding at high speed with a concrete barrier. The father says it was a simple car accident.
The mother alleges that the father has been violent towards her. Specifically she deposes that in April 2018 the father punched her in the chin with a closed fist. In December 2019, she says that the father threw a soccer ball at her chest with force during an argument. She says that if she confronted him about excessive alcohol consumption he would throw objects at her.
The mother gives evidence that on 16 December 2019 the father struck her and barged into her with “considerable force”. Later that night the mother says that the father (she believes under the influence of alcohol) threw a plate at her, smashing it at her feet.
The mother says that the father has been violent to his uncle Mr K.
The mother gives evidence of some statements the father has made which cause her concern:
·When the topic of the death of Hannah Clarke and her children arose, the mother records the father said: “Yep. It’s not right what he did but I totally understand why he did it, because you women are all the same and take everything”.
·When the mother raised the father’s consumption of true crime television she says he responded: “I know how to kill someone without leaving evidence”.
The father’s response to the mother’s allegations is that “insofar as the… allegations relate to family violence they are strenuously denied”. He says that the mother has raised matters in these proceedings which she did not raise with him during the relationship and that she has taken things out of context, for example wrestling and boxing were things he engaged in with the children playfully.
Both parties say the other has sworn and used derogatory language about the other during arguments.
The mother says that she has concerns that the father uses alcohol to excess and that he has abused illicit drugs, in particular cocaine. She also sets out in her affidavit concerns that he may misuse prescription drugs. The maternal grandmother says that the father specifically asked her whether she would give him some of the Endone which had been prescribed for her post surgery.
The parties give differing evidence about their response to the COVID-19 health guidelines such as applied in the United Kingdom while they were resident.
The parties commenced to reside in separate premises in the United Kingdom in May 2020. The mother gives evidence of the father subsequently attending at the home where she and the children continued to reside. She says the children became afraid.
The mother and the children left the United Kingdom for Australia on 5 July 2020.
Upon return to Australia, the mother has secured the assistance of psychologists for herself and both X and Y.
The orders of 16 July 2020 made provision for the children to speak with their father by
video communication. Both parents say that those orders have not operated as intended. The mother says the children are reluctant to speak with their father. The maternal grandmother says she has seen the same reluctance. The father says that the mother does not encourage or support the children to speak with him.It is common ground that when the father came to Australia at the end of December 2020 the mother declined to entertain his requests for time including supervised time.
There is a child support assessment under which the father is to pay the mother a periodic weekly sum of $882.26. The father says he was unaware of the assessment and has paid $10,000 to the mother’s account and otherwise made a payment to the children’s school account and complied with order 9 of the Orders of 16 July 2020.
THE LAW: INTERIM PARENTING
It should be noted that in the parenting case the mother makes serious allegations which are, in the main, denied by the father. In Eaby & Speelman (2015) FLC 93-654 the Full Court observed:
[T]hat does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
It is not possible to ignore or put to one side serious allegations just because they have been put in issue. Until the evidence can be tested, it is necessary to appreciate the impact on the children if the allegations are subsequently found to be accurate (SS & AH [2010] FamCAFC 13 at [41] and [100]).
The Full Court has analysed the process of assessment of risk in the decision in Deiter & Deiter [2011] FamCAFC 82 at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
As a consequence of the issues of risk identified by the material, more weight is to be given to the protection of the children from potential harm until the evidence can be tested. Accordingly, in approaching the considerations set out in the Family Law Act 1975 (Cth) s 60CC (“the Act”), s 60CC(2A) of the Act applies.
ASSESSING RISK ON THE BASIS OF THE UNTESTED EVIDENCE
If the mother’s evidence is accepted, then the father has engaged in family violence. The father’s acknowledgment, through his lawyers, that his time will be supervised is his appropriate recognition of the fact he understands that notwithstanding his denials, the matter must proceed at this stage as though what the mother sets out in her material may have occurred.
Accordingly, the task is not to determine whether the father has engaged in family violence or, indeed, whether the mother has failed to support the children’s relationship with their father but rather to answer the question: what does an assessment of the agreed facts and objective evidence suggest as an interim pathway for the children bearing in mind the allegations?
There is some support for the father’s concern that the mother may not be doing all she can to assist the children to have telephone communication with the father. In the CDC the Consultant recorded:
33.… [The mother] has said to the children that she is sorry that she has to ask them to speak with [the father].
It may well be that because of the mother’s own experiences with the father she has difficulty supporting the children in having a relationship with him but any final conclusion on this issue would require me to determine which of the parent’s account is true – a task I am unable to do at this interim hearing.
The Consultant talked about the competing risks for the children:
43.… If [the mother’s] allegations were found to be true this parenting arrangement could place the children, and [the mother], at risk of physical and psychological harm.
42.If [the mother’s] proposal for time and communication was implemented, and there are no valid risk issues, this could affect the children’s long-term relationships with [the father].
There is some objective evidence available about the issue of drug use. A letter which makes reference to random routine drug testing and dated 7 October 2021, was in evidence
(Exhibit 1). It suggests that the father tested negative for methamphetamine, cocaine, cannabis, MDMA, methadone, tramadol, benzodiazepines and ketamine on 7 October 2021. There is no information about testing methodology or frequency.
In the ICL tender bundle (Exhibit 3) is a report of Ms L, a psychologist, treating X. X is said to have reported:
… feeling frightened of his father due to a history of emotional and at times physical abuse he had witnessed his father perpetrate against his mother, himself and towards his two younger sisters. X complained of struggling with poor sleep, nightmares and intrusive thoughts and flashbacks related to his reported experiences with his father.
It is necessary to understand the evidence concerning the children’s expressed views. X’s psychologist recorded:
He communicates a fearful and avoidant relationship with his father and has expressed on numerous occasions that he does not currently want a relationship with him.
When resumption of the relationship with the father was raised with him explicitly through his psychologist, he “made it clear that he did not want this to occur”.
The ICL also canvassed the children’s views and recorded them in correspondence with the parents (Exhibit 3). Both X and Y were said to have “expressed genuine distress at the possibility of seeing their father”.
The children are said, by their respective counsellors, to view the twice-weekly phone calls with the father as a source of stress.
Y attends on Ms M, psychologist. Ms M recorded:
Y continues to express fear and resistance toward resuming a relationship with her father. Y has made it clear during sessions that she does not wish for this to occur.
There is no independent evidence concerning Z’s views but given her age, this is not material.
The difficulty which the evidence presents is balancing the importance of a meaningful relationship with both parents against the risk of harm. The consultant noted:
44.The children have a right to a meaningful relationship with both parents, provided it is safe to do so. It is important that both parents are supportive of the children’s relationship with both parents as failure to do so will likely cause the children significant emotional distress and long-term implications for their mental health…
Professionally supervised time, as proposed by the father, would allow the children to spend time with their father in a setting which was controlled and would ensure that the children are not exposed to conflict between the parents. It would also protect against the risk of the children being exposed to physical harm or poor parenting decisions.
If the time were to be professionally supervised, it would have the additional advantage of providing to the parents and ICL an objective written account of the time.
The one risk that professionally supervised time may not be able to address is the psychologically harming effect the time may have on X and Y. I am conscious of that risk. It is this factor which makes this determination so difficult. On the one hand, the Court would be loath to expose children to an experience which may be traumatic for them. On the other hand, I am conscious that because of the amount of time that has passed since the children saw their father and because the evidence remains untested, making no order for time on an interim basis may have the effect of predetermining the parties’ applications by further undermining the children’s relationship with the father.
As was properly acknowledged by counsel for the mother, there is some hope that because the children are well supported by their respective psychologists, if the experience of time is difficult for the children they have an outlet to process their emotions. I am comforted that X’s psychologist records:
X appears to have a positive view of supporting professionals and thus having a formal and impartial supervising person overseeing any recommended visitations or contacts would be recommended.
One of the matters raised by the affidavit material and detailed in the statutory considerations set out in the Act is the extent to which each of the child’s parents have fulfilled, or failed to fulfil, their obligations to maintain the child. This was the subject of evidence by both parents. The mother pointed to a significant Child Support debt, the father to a number of other payments made by him to the parties’ mortgages and in a series of lump sum payments. It is not necessary to resolve this factual dispute in order to determine the interim application given its scope.
Since the CDC Memo was released in 2020, the proposal that the father engage in courses designed to address the issues raised by the mother in the proceedings has been mooted.
Until the hearing on 22 October 2021 the father had, consistent with his denials, been resistant to engaging in any such course. His counsel indicated at the interim hearing that his client’s instructions had changed and he had now enrolled and expected to commence the six week online course “N Program” which started on 27 October 2021.I am conscious that the mother, through her counsel, says I should also be aware that if orders for time between the children and the father are made, this may have the effect of creating anxiety for the mother. If what the mother contends in her material is accurate, then orders for time may well cause her anxiety. She has appropriately sought her own psychological support and the evidence does not establish that any anxiety she may experience will impact on her parenting such as to speak against the making of an order for supervised time.
There is another risk which the father (through his lawyers) asks the Court to take into consideration and that is the possibility that the mother’s actions in ignoring legal correspondence requesting time and in failing to make the orders for electronic communication operate in a manner which supported the children’s relationship with their father, have had a negative impact on the children’s relationship with their father and, in the case of Z, on the development of that relationship. The mother’s failure to engage in correspondence is of concern. Whether her conduct can be characterised as designed to alienate the children from their father is a matter which can only be resolved at trial.
The father will only be in Australia for a short time. It seems he is scheduled to return to the United Kingdom around the end of December 2021. The orders he seeks are designed to operate in November and December 2021.
I am satisfied when weighing the significant potential long term consequences of the children losing the opportunity to have a meaningful relationship with both parents that there should be some limited supervised time between the children and the father. It should not occur on
two consecutive days per week because of the concerns expressed above about the possibility that the children may find the time itself a source of potential psychological harm. It should not move from professionally supervised to non-professionally supervised. The professional supervision is designed to assist the parties and the children to have confidence in the protections supervision offers and to obtain independent reports. The parties and ICL should request that the agency engaged to supervise furnish their reports promptly, particularly so the ICL can request an urgent relisting if deemed necessary. In making the decision that the time be professionally supervised I have not determined that the paternal grandmother would not act appropriately but rather that at this stage of proceedings a more formal supervision is required.On 16 July 2020, an order for electronic communication was made. It was made by consent. Both parties considered that it was in the best interests of the children, in circumstances where the children’s father was living overseas, that he have a video call with them twice a week. It is common ground that the calls have not been successful. I have referred above to the evidence of the children’s multiple therapists about the children finding the calls stressful.
The mother seeks that the order be discharged. The father seeks to maintain the order. Consistent with the above analysis in respect of supervised time, it is my view that a balance needs to be struck between the importance of these calls as a means of ensuring the children maintain a relationship with the father (which is safe) and ensuring that the video calls do not become a source of distress to the children or otherwise undermine their relationship with their father. At this stage that balance is perhaps best struck by an order which provides that the electronic communication occur weekly (rather than twice a week). The children should have a video call with their father every weekend and the mother shall ensure that the children make the call to their father.
ISSUES IN THE FINANCIAL MATTER
There are two financial issues before the Court: spouse maintenance (either lump sum or periodic) and interim costs (either lump sum or dollar for dollar).
The mother seeks an order for $100,000 by way of lump sum spouse maintenance pursuant to s 77 of the Act or in the alternative $2,570 per week pursuant to s 74 of the Act.
The mother seeks $100,000 by way of costs pursuant to s 117(2A) of the Act and in the alternative she seeks, pursuant to s 117(2A) a dollar for dollar costs order.
The father seeks that the financial applications of the mother be dismissed.
The parties’ assets are set out above. The assets available for division between them are relevant to the applications the mother makes for payment of a lump sum.
The father’s income is governed by his contract which was in evidence.
THE LAW: INTERIM FINANCIAL
Section 77 of the Act provides:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
Section 74 of the Act provides:
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
In determining an application for lump sum or periodic maintenance it is necessary to consider the relevant matters in s 72 of the Act:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason
having regard to any relevant matter referred to in subsection 75(2).
Spouse Maintenance
There was not a significant dispute between the parties that the mother is unable (within the terms of the Act) to support herself without resort to an income tested pension or benefit. The real issues that arose were:
·Is there a fund of money from which a lump sum spouse maintenance payment could be made? To the extent that s 77 of the Act is invoked, is the maintenance urgent?
·Does the father have the capacity to meet an order in the periodic sum sought or at all? This question falls to be answered both now and after his salary drops, as per the terms of his contract.
·Are the mother’s needs “reasonable”?
The mother’s Financial Statement sets out her reasonable expenses. The father says he is paying the mortgages for both the Suburb H and Suburb F properties and the rates and insurance. The mother’s expenses are set out in Part N of her Financial Statement as being $1,194. The expenses claimed in Part G is duplicated in Part N. No submission was made that these expenses claimed by her are unreasonable.
It is not possible to order that the father pay spouse maintenance to the mother to meet the children’s expenses (as set out by the mother at Part N of her Financial Statement). The question of child support must be considered separately and is not before the Court
(Stein & Stein (2000) FLC 93-004).Turning to the question of the father’s capacity to meet an order for spouse maintenance.
The father has $15,367 in pre-tax income each week. He has fixed commitments to pay tax, the parties’ mortgages, his own rent, rates, insurances and motor vehicle lease, which total $11,102. He sets out additional expenses for himself at Part N of his Financial Statement.
They total $1,670. If a deduction is made for the $300 described as “other necessary commitments” that figure is $1,370. The father does not explain why the figure claimed for his food is $800 per week. The father has not been paying child support in accordance with the assessment. If he were to pay in accordance with the assessment, he would be required to pay $882 per week. Accordingly, from income of $15,367 the father has total expenses of $13,354. Leaving him with a present surplus of $2,013.I find that the father has the capacity to meet the mother’s shortfall.
In making this finding I take into account the fact that the father receives a car allowance
(as per his payslip). It is not plain from his Financial Statement whether he has included that in his income. I also take into account the fact that it is reasonable in all the circumstances that he spend less on food per week.From 1 December 2021, the father’s income will decrease from GBP410,000 to GBP150,000. I was told by counsel to apply an exchange rate of 1.85. Consequently, from 1 December 2021 the father’s income will be about $277,500 or $5,337 per week. There will be a corresponding decrease in the tax he will be required to pay (and the child support assessment) but we can assume his other fixed expenses will remain the same. The fixed expenses not including tax are $4,397. Annexure K to the father’s affidavit suggests that the tax payable will be GBP54,307 or $100,468. That equates to $1,932 per week. I therefore find that after 1 December 2021 his income will be inadequate to meet any order for periodic maintenance (even if there is a decrease in his child support).
Lest it is not plain, the father’s obligation to pay child support as assessed, remains until such time as it is varied by the Child Support Agency.
The father will remain bound by the terms of Order 9 of the orders of 16 July 2020.
As the period where the father will have the capacity to pay is limited to about four weeks, the orders will reflect one lump sum payment to represent four weeks periodic maintenance totalling $4,776.
Having found that the father will not have the capacity to meet an order from his income, the question arises as to whether it would be appropriate to make a lump sum order.
It is necessary to consider the sources available from which such an order could be met.
The evidence suggested three potential sources of liquid or semi liquid funds:
·The father’s bank account $21,174;
·The father’s Motor Vehicle 2 $33,000; and
·The father’s Super Fund 4 account benefit of $85,838, subject to tax of 32 per cent, so less $27,468, being net $58,370.
Together each of these sources total just over $100,000.
The mother seeks $100,000 by way of lump sum maintenance and $100,000 by way of
interim costs. It is plain that the parties do not have sufficient available funds to order that the mother receive $200,000.The mother’s counsel suggested that there may be an issue about a loan which the father records in his Financial Statement as owing to Ms O (the father’s grandmother) and specific reference was made to payments to Ms O from his bank statements. It is not possible to make any finding about the loan and the payments from the available evidence at this stage.
The parties have already spent significant funds on this litigation.
The mother’s affidavit material did not set out a basis for the Court to consider making orders pursuant to s 77 of the Act. The application was filed in May 2021. Section 77 is reserved for matters where it is not possible, because of the urgency, to determine what order (if any) should be made. I decline to make an order for payment of a lump sum pursuant to s 77. It was not argued that I should make an order for a lump sum in reliance upon any other section of the Act and because the parties’ available liquid assets are modest, as set out above, I am not satisfied that the circumstances for the order of a lump sum would have been satisfied. I decline to make that order.
The mother sought that she be paid $100,000 pursuant to s 117(2A) of the Act.
Section 117 of the Act sets out the basis upon which the Court is empowered to award costs. That section provides:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Those provisions make clear that, while the general rule in family law proceedings is that each party bears his or her own costs, the Court may order a party to pay the costs of another where there are circumstances justifying the making of such an order.
Regard must be had to the considerations set out in s 117(2A) of the Act in determining whether or not to order a party to pay the costs of another. For the mother to be successful in her interim costs application, she must establish the justice of the case requires an order for costs, by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
No one factor under s 117(2A) prevails over any of the other factors. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion (Medlon & Medlon
(No 6) (Indemnity Costs) (2015) FLC 93-664 per Strickland J).I did not have evidence about most of the factors.
While, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at 130) the factor must constitute the justifying circumstances.
In some cases, the justifying circumstances may be the financial circumstances of each of the parties. However in this case, as outlined above, the father’s salary would not constitute justifying circumstances given his financial commitments.
I therefore asked that both parties provide written submissions about whether the order for legal costs could (and should) be made in reliance upon another section of the Act, in order to make sure both parties had the opportunity to be heard about an alternate basis for the making of the order.
In accordance with my directions, counsel for the applicant provided submissions identifying ss 79 and 80(1)(h) of the Act as a basis for the exercise of power to make an order providing for legal costs.
The lawyers for the respondent did not take up the offer to provide submissions on the issue.
The parties have a modest pool of assets from which such an order could be satisfied without requiring the sale of real property. Those more liquid assets are not sufficient to provide the sum sought by the mother.
I will not order the father to realise any of the assets in his possession or control but note that between his bank account, his motor bike and the net value of his retirement account, he has funds of about $112,544. Notwithstanding the emails in the mother’s tender bundle,
I have some doubts about whether the father’s access to the Super Fund 4 account is available to him if his salary is not currently reduced due to COVID. In any event the net balance is certainly an asset available for consideration in making any final adjustment.Accordingly, in order to ensure that after the father’s salary reduces, he also has funds for legal representation, I find that he should pay to the mother an amount of $40,000 within 60 days, such sum to be paid to her pursuant to s 79 of the Act. There is no risk having regard to the asset pool that such payment will prejudice the relief sought by either party.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 4 November 2021
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