PARSONS & KEMP - [2014] FamCA 1091

FAMILY COURT OF AUSTRALIA

PARSONS & KEMP

[2014] FamCA 1091

FAMILY LAW – CHILDREN – Children have lived primarily with mother since birth – husband seeks relatively rapid change of parenting arrangements to equal time – history of conflict between the parties – agreement that the children should spend unsupervised time with the parties but issues of time and communication are unresolved.

FAMILY LAW – CHILD SUPPORT – Administrative assessment – application under s 116 for departure of administrative assessment in the context of parenting proceedings – threshold question – whether in circumstances the Court should exercise power under s 116 and make departure orders.

Family Law Act 1975 (Cth)
Child Support (Child Support Assessment Act) 1989 (Cth)

Kemp & Parsons [2014] FamCA 865
Harris & Ellis [2011] FamCAFC 90
Best & Best [1993] FLC 92-418

APPLICANT:

Mr Parsons

RESPONDENT:

Ms Kemp

FILE NUMBER:

LNC

628

2012

DATE DELIVERED:

8 December 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

13, 14 & 15 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roger Murray

SOLICITOR FOR THE APPLICANT:

Murray & Associates

COUNSEL FOR THE RESPONDENT:

Mrs Kate Mooney

SOLICITOR FOR THE RESPONDENT:

Wallace Wilkinson & Webster

PARENTING ORDERS

All previous parenting orders in respect of the children are discharged.

Parental Responsibility

BY CONSENT Mr Parsons (‘the father’) and Ms Kemp (‘the mother’) have equal shared parental responsibility for the three children of their relationship namely:-
B Kemp-Parsons born … 2006 (‘B’);
W Kemp-Parsons born … 2008 (‘W’); and
L Kemp-Parsons born … 2010 (‘L’)
(collectively called ‘the children’).
The father and mother shall:-
(a)keep the other party reasonably and properly informed of all important issues with regard to the health, welfare and education of the children;
(b)from the commencement of the 2015 school year, enrol B and L at the X Private School; and
(c)from the commencement of the 2016 school year, enrol W at the Y Private School.

Residence

The children shall live with the mother.

Spend time with

Except as otherwise agreed in writing between the parents the children shall spend time with the father as is set out below:-
(a)In relation to school term time on a two week cycle as follows:-
(i)week 1 - from after school Friday until the commencement of school on Monday in 2015 (or Tuesday if the Monday is a public holiday or a student free day) and Tuesday from 2016;
(ii)week 2 - from after school Thursday until the commencement of school on Friday.
(b)Subject to the orders regarding travel to the United States of America; the Christmas/New Year school holiday time as follows:-
(i)for 2014 and each alternate year afterwards –
1.for the period from the end of school term until 25 December, equal days between the mother and the father, with the father having the first half of that period and the mother the second half up to 3.00 pm on 25 December; then
2.with the father from 3.00pm on 25 December until 6.00pm on 29 December; and then week about over the remainder of the Christmas/New Year holiday period; with the children to be returned to the mother three days before school term commences;
(ii)for 2015 and each alternate year afterwards –
1.for the period from end of school term until 3.00 pm on 25 December, equal days with between the mother and the father, with the mother having the first half and the father having the second half up to 3.00pm on 25 December; and
2.in harmony with order (b)(ii)(1) the children shall spend time with the father from at least 12 noon on 24 December until 3.00pm on 25 December; and then the children will be with the mother from 3.00pm on 25 December until 12 noon on 29 December 2015; and then week about, with the children to be returned to the mother three days before school term recommences.
(c)In the event that the father wishes to travel with the children to the United States of America (or other State – agreed to by the mother); in the 2015/2016 Christmas New Year school holiday period (and/or each in alternate year afterwards):-
(i)the children shall live with the mother from the end of school term until 12 noon on 29 December and then from 19 January next until the commencement of school term, except for the period from 12 noon on 24 December until 3.00pm on 25 December, when the children shall spend time with the father;
(ii)the children will spend time with the father from 12 noon on 29 December until midday on the following 19 January.
(iii)the father is permitted pursuant to s 65Z(2)(b) to remove the children from the Commonwealth of Australia and take them to the United States of America for that or those periods.
(iv)the father shall give the mother at least four (4) months’ notice in writing of the flights and provide her with an itinerary for the trip to the United States or other agreed State.
(d)In the event that the mother wishes to travel overseas or interstate with the children in the 2016/2017 Christmas New Year school holiday period (and/or each in alternate year afterwards).
(i)The mother shall seek the consent of the father to take the children overseas, if the State/s to which they are travelling is to be other than the United States of America or Canada. The father shall not unreasonably withhold consent.
(ii)In these circumstances the children shall live with the father from the end of last school term until 12 noon on 29 December and then from 19 January next until three days before the commencement of the first school term, except for the period from 12 noon on 24 December until 3.00pm on 25 December, when the children shall live with the mother;
(iii)the children will live with the mother from 12 noon on 29 December until midday on the following 19 January.
(iv)the mother is permitted pursuant to s 65Z(2)(b) to remove the children from the Commonwealth of Australia and take them overseas or inter-State for that or those periods.
(v)the mother shall give the father at least four (4) months’ notice in writing of the flights and provide him with an itinerary for the trip.
(e)During the first and third mid-term school holiday periods the children shall spend time with the father from after school on the Friday being the last day of each mid-year school term until 12 noon on the mid holiday Saturday and the children shall live with the mother for the remainder of that school holiday period.
(f)In respect of the second mid-year school holiday break:-
(i)if W’s birthday is on the Saturday being the mid-point of that school holiday period, then during that mid-term school holiday period the children shall spend time with the father from after school on the Friday being the last day of each mid-year school term until 12 noon on the following Saturday and the children shall live with the mother for the remainder of that school holiday period
(ii)if W’s birthday is not on the Saturday in the middle of the school holiday period then in 2015 and each alternate year afterwards, the children shall spend time with the father in the week of W’s birthday, whether week one or week two.
(iii)if W’s birthday is not on the Saturday in the middle of the school holiday period in 2016 and each alternate year afterwards children shall spend time with the father in the week which is not his birthday, whether week one or week two
(iv)for the purpose of this part of the orders the weeks shall be from after school on the Friday being the last day of term until 12 noon on the Saturday in the middle of the holiday break (week 1) and from 12 noon Saturday until the commencement of term (week 2).
(g)As to Easter:-
(i)from 12 noon on Easter Saturday 2015 until 12 noon on Easter Sunday in 2015 and each alternate year thereafter;
(ii)from 12 noon on Easter Sunday until 12 noon on Easter Monday in 2016 and each alternate year thereafter.
(h)In the event the children would not otherwise be living with the mother on Mother’s Day, the time with the father over that weekend will conclude at 9.00am on Mother’s Day.
(i)In the event that the children are otherwise not living with or spending time with the father on Father’s Day, they shall spend time with the father from 9.00am on Father’s Day until commencement of school the following Monday or Tuesday if Monday is a student free day.

Injunction, Passport, Communication and Miscellaneous Orders

BY CONSENT the father and mother be and are restrained from;
(a)denigrating the other party or members of his/her family to the children or in the presence or hearing of the children,
(b)permitting others to denigrate the other party or members of his/her family to the children or in the presence or hearing of the children’s, and
(c)denigrating the other party or members of his/her family by way of social media including but not limited to Facebook and Twitter.
BY CONSENT the parties shall, within two (2) month’s from the date of this order, jointly apply for a passport for each of the children.
BY CONSENT such passports shall be held by the father and used in accordance with these orders or any written agreement between the parties. The father shall release the passport to the mother in the event that she seeks to take the children out of Australia in accordance with these orders or any written agreement between the parties.
Each party may communicate with the children twice a week by telephone.
The parties are directed to arrange counselling as recommended by the Family Consultant in her 2014 Family Report.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

CHILD SUPPORT ORDERS

The Child Support Assessment issued 28 July 2014 for the period 7 July 2014 to 6 October 2015 is departed from as follows:-
(a)the weekly rate of child support for L born … 2010, B born … 2006 and W born … 2008 (‘the children’) be set at $840 (being $280 for each child).
(b)the assessment period is to operate from 7 July 2014 until 31 January 2016.
Pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) the father pay the following by way of non-periodic child support the following:-
(a)private school fees (not including after school care or holiday care initiated by the mother) being;
X Private School for B and L, and
Y Private School for W.
(b)school uniforms, including sports clothes, shoes and equipment for activities at or through the school as are reasonably required by the children;
(c)school books, stationary and miscellaneous reasonably required by the children;
(d)school levies; and
(e)school excursions within Tasmania reasonably offered to the children by the School which the child attends.
These non-periodic payments will be made in respect of each child until the earlier of:-
(a)further orders made by a court exercising jurisdiction pursuant to the Child Support (Assessment) Act 1989 discharging suspending or varying this order, or
(b)express variation, discharge or suspension pursuant to a written Child Support Agreement.

GENERALLY

IT IS NOTED that the mother will use her best endeavours to ensure that the X school sends a separate account to her in relation to N’s school fees as distinct from those relating to B and L and the parties may provide a copy of these orders to the court[1].
[1] Nothing in this direction is intended to impose any obligation upon the school to mandate such accounting.
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 628 of 2012

Mr Parsons

Applicant

And

Ms Kemp

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between Mr Parsons (‘the father’) and Ms Kemp (‘the mother’) relating to two primary issues, namely:-
(a)the parenting arrangements in respect of their three children B, aged seven, W, aged six and L, aged three at the date of hearing; and
(b)the mother’s application for a departure from a child support assessment made 28 July 2014[2] and non-periodic child support.
[2] Annexure A to affidavit of mother filed 12 September 2014.
In relation to the parenting proceedings the parties are in agreement that there ought to be shared parental responsibility. The parties agreed that a passport should issue for each of the children and, curiously, that the passports be held by the father.
Having regard to the history of conflict between the parties, I carefully considered the consent arrangements proposed by the parties. This was one area of agreement, and with the parties seeking such orders it assured me that they were able to communicate to that extent necessary. Given the evidence and the findings set out below, I will make orders in terms of that consent.
In terms of residence, the father seeks an order that the current arrangements move to equal time by the beginning of 2016 which will be just after L’s fifth birthday, having increased to five days in 2015.
As to the remainder of Christmas and for Easter there was some agreement between the parties that these periods ought to be split with the children spending Christmas Eve with one parent and the following Easter Saturday afternoon and Easter Sunday morning with the other parent. That structure was sensible and orders have been made to accommodate that agreement.
There was an issue about time changeover time on Christmas Day, the father sought changeover at twelve noon. The mother wanted the changeover to occur at 3.30pm.
The final issue requiring determination was whether the father could travel with the children to the United States to visit family.

BACKGROUND

The mother is aged 36 and she is on leave from her employment with a State Government Department. She raises no significant issues as to her health, although, the father raises issues about the mother’s mental health in the context of her ability to parent. I have given this evidence little weight in view of the absence of expert evidence and the level of conflict between the parties.
The father is aged 43 and is a professional by occupation. He owns two businesses and has an interest in a third. There are no relevant health issues in terms of the father’s ability to parent the children and to continue working.
The parties commenced a relationship in 2005 and started living together in late 2006 just prior to the birth of their eldest child.
They have their three children aged about eight, six and four (‘B’, ‘W’ and ‘L’).
The mother has a child of an earlier relationship (‘N’) who is aged 12.
The parties separated in February 2012, but remained living at the same property at Suburb Z, with the father moving into a large shed on the property.
In March 2012 the father took the children on a holiday to Queensland with the mother’s permission. At that time L was about 14 or 15 months of age.
From Easter 2012 direct verbal communication between the parties ceased.
In August 2012 the father arranged to live part of the time in an apartment in Hobart.
The parties were in conflict over a number of issues, including the efficacy of a 2006 financial agreement under the Family Law Act 1975 (Cth), as amended (‘the Family Law Act’). The father was seeking equal time with the children. The mother opposed that approach.
Proceedings were commenced by the mother in the Federal Circuit Court in December 2012. They were transferred to the Family Court in August 2013. In February 2014 the hearing of the mother’s application to set aside the financial agreement was commenced and then settled.
On 29 April 2014 an order was made that the father pays to the mother a sum of $50,000. On 20 May 2014 consent orders (‘the property orders’) settled the parties’ property and spouse maintenance disputes. The property orders included a further payment to the mother of $1,100,000 and were supplemented by a further financial agreement.[3]
[3] Notation 1 to the property orders.
From separation in February 2012 to December 2013 the father provided financial support to the mother and children by payments of $1,100 per week in addition to paying school fees, housing costs and the like. From December of that year the father reduced the periodic child support he paid to the mother to $775 per week. From that time on there were issues between the parties as to the level of financial support the father should provide for the mother and the children of the relationship. The mother subsequently sought child support and on 1 August 2014 the mother lodged a child support application. In July 2014 father was assessed to pay child support of $616.75 per week for the three children (‘the child support assessment’).
In August 2014 the parties substantially put into effect the property settlement with a payment of about $1,100,000 to the mother, who in turn vacated the home at Z and the father resumed full occupation of it.
When the parenting proceedings came before me in July 2014 the mother had received a child support assessment and her legal representatives indicated that the mother would be seeking a judicial consideration of the level and nature of child support payable pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (the ‘Child Support Assessment Act’). In early August 2013 the mother filed a departure application, and after a contested interlocutory hearing that question was referred for determination during the parenting hearing.
The current arrangements with regard to the children spending time with the father are that the children spend time with him from after school Friday until the commencement of school Monday and for three hours after school on Mondays and Thursdays.
Tendered during the course of the hearing was the outline of argument by the mother in relation to the expert evidence filed on behalf of the father.[4]
[4] Exhibit M3
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

THE EVIDENCE

The father

The father gave evidence in terms of his affidavits filed 19 August 2014, 26 September 2014 and 8 October 2014. Subject to some objections these were read into evidence. The father relied upon his financial statement filed 8 October 2014 and added a number of pages which had been initially left off that financial statement.
The father said that in concluding the agreement with the mother as to property and spousal maintenance settlement in May 2104 he had considered his overall financial circumstances and his child support commitments. Given the evidence and findings set out elsewhere in these reasons I discount that evidence.

The father gave evidence that there had been a significant downturn in his business. Given the concerns of the quality of his evidence and the money he has spent since the property settlement, I give that evidence limited weight.
When cross-examined about breakfast with family and breakfast lunches the father obfuscated. His evidence in this regard was unsatisfactory. When pressed on difficult questions such as that relating to annexure C to his affidavit filed 26 September 2014 he asserted that he could not recall the answers. He prevaricated in relation to that answer.
The father’s view is that the mother feigns being reasonable but is not reasonable.
The father asserted that he has flexible working hours but did not attend school canteen and he prevaricated about attending school events. In relation to Christmas, his evidence was more about his needs for Christmas than the needs of the children particularly with their elder sibling.
I accept that the father has a close and loving relationship with the children, and is committed to them.
The father was cautious and at times avoidant when giving evidence. Unsurprisingly, his evidence was subjective and supportive of his view of the circumstances.
I was cautious in considering his evidence and I have dealt with it on a case by case, issue by issue basis.

The mother

The mother gave evidence in accordance with her affidavits filed 12 September 2014 (child support), 1 August 2014 (child support) and 29 September 2014 (parenting) together with that contained in her financial statement filed 12 September 2014.
The mother made some amendments to that financial statement namely:-
-    item 21 (part G) was reduced to $232;
-    item 37 (money in the bank) was reduced to $16,500;
-    item 51 (credit card) was reduced to $1,790; and
-    in her Part N statement she increased the total of the clothing and shoes to $210 and entertainment and hobbies was reduced to $270 making an overall change of about $152.
The mother was loquacious in answering questions and often answered questions with questions and many of her answers were argumentative in nature. I considered some of this as natural nerves in giving evidence and other parts of it seemed to be endeavouring to avoid answering questions.
When asked to read the lengthy exchange of emails as recently as June/July 2014[5] the mother said that the material needed to be read in context. I did so, by reading the pages before and after. It is clear from that material that the mother ‘wound up’ the father and then complained about his response. She is oversensitive to the father’s language and insensitive to her own involvement.
[5] Exhibit F2, pages 128 to 132.
That may be in part explained by the history of control and violence which the mother refers to in her material, however it does not bode well for parenting into the future.
In her evidence the mother said she had learnt something from the children in relation to physical discipline, which confirmed her fears in that respect. However, she did not put this in an affidavit and later retracted that assertion, including about the father’s mother. The mother’s evidence in this respect appeared to have been at best an exaggeration and at worst a fabrication.
In text messages that she sent to the father, the mother taunted the father and encouraged an adverse response. Neither parent should be proud of their communication behaviour displayed in the text evidence. It was indicative of communication failure and ongoing parental conflict.
The mother was cross-examined about an indication in the family report that the mother held a view that the father’s time with the children would end up being on an equal basis. The Family Consultant reported:-[6]
30. It was apparent that [the mother] did not seem to have a firm view about the final parenting orders that might best meet the children’s current needs or when the children might be ‘old enough’ to manage with a 50/50 parenting arrangement. [The mother] reported that it is difficult to settle the children for their bedtime routine when they return home after having an evening meal with their father. In response to parenting possibilities posed by the consultant, [the mother] reported her concern that the children may not manage well if there is a long period each fortnight when they did not spend time with their father.
[6]Family Report, paragraph 30.
The mother said the report was written out of context. Her evidence, however, appeared to be confabulated or reconstructed on this point.
When the children went away with the father in March 2012 for a week the mother, some months, later complained through her solicitor that the child L was clingy on her return from that visit. There was no evidence of previous complaints about this issue and I am satisfied the mother either exaggerated or fabricated the child’s alleged reaction.
The mother complained that the child B had been threatened by the father to gain her support for his equal time push. The mother’s evidence, on this point, gave some insights into the mother’s engagement with the child in relation to the content of the family report.
Given that assessment, I will treat the mother’s evidence with care.

The Family Consultant

Ms M is a Family Consultant (‘the Family Consultant’) employed by the Family Court and who prepared two reports for the Court. Her first report (the issues assessment) in 2013 and her second report (the family report) in 2014.[7] Those reports were read into evidence.
[7] Exhibits F4 and F3.
There was no challenge as to qualifications of the Family Consultant. She was balanced and careful in her evidence.
With the issues assessment in February 2013 the Family Consultant saw the parents but not the children.
In the family report of 2014 the Family Consultant recommended:-
54.    … that the children live with their mother.
55.    For the rest of this year, it is recommended that the children’s current arrangements continue, with the children spending time with their father during school terms;
a.Week 1 from Friday after school until Monday (extending to Tuesday on a long weekend) before school and from Thursday after school until 6.30 pm.
b.Week 2 from Monday after school until 6.30 pm.
56.    On the basis that the property is settled and [the mother] is re-established away from the [Z] home, starting in 2016 (when [L] is in full-time school) it is recommended that the children live with their father during school terms;
a.Week 1 from Thursday after school until Monday before school (extending to Tuesday on a long weekend); and
b.Week 2 from Thursday after school until Friday morning.
57.    It is recommended that the children live equal time with each parent during school holiday periods and that consideration be given to having orders that will allow the children to spend extended holiday time with each parent so they can travel.
58.    It is recommended that parents arrange for [B] to have counselling.
In terms of the recommendation for counselling, I accept the need for it given the evidence and I have made an order to that effect.
The Family Consultant had scanned the parties’ recent affidavits and her recommendation, which I accept, was that the children ought not to move on to equal time given the conflict between the parties. I accept that assessment given the evidence I have heard and read and given the history of these parties.
The Family Consultant deposed that the mother’s objection to overseas travel was overly cautious. I agree.
In terms of equal time the parents are unlikely to be able to work well together and given the history I accept that that is the case. In addition the factor against equal time is the relationship between the children and their sister and, as I indicated earlier, the imbalance given the history of family violence.
I accept the evidence of the Family Consultant and the evidence of the mother that the mother holds a genuine belief that she was dominated by the father during the course of their relationship.
The evidence of the Family Consultant was not seriously challenged and I accept her evidence as being reliable although I had a better and broader understanding of the factual background upon which to consider the assessment and recommendations.

THE PARENTING ARRANGEMENTS FOR THE CHILDREN

Principles

I have an obligation to apply the relevant principles of the Family Law Act. To this end I must have regard to the objects of and principles as set out in s 60B. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration. Thus, given that the child’s best interests are the paramount consideration in deciding what parenting orders should be made and in determining those interests the Court must consider the relevant factors set out in s 60CC of the Family Law Act.
Section 61DA(1) of the Family Law Act provides:-
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child.
Sub-section (4) of the Family Law Act provides:-
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considers appropriate.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

FINDINGS

Conflict between the parties

The father asserted that the mother was not a good homemaker, cannot cook and is barely able to cope. I do not accept that evidence and on the material before me I am satisfied that she is a good parent (apart from promoting the parental conflict).
The mother claimed that the father had in the past been controlling and abusive to her. I am troubled by her evidence to that end and that her views may be exaggerated and given that the father has a strong character and I have concerns about his forceful nature I am troubled about his evidence. However, each of the parties now assures me that the children are safe in the unsupervised care of the other party. If the mother felt controlled at the time of separation, the evidence of the emails and text messages that pass between the parties are ample evidence of their robust exchanges and show that any such past fears of the mother have evaporated.
Each parent blames the other for the conflict. The father denies that his participation in the conflict has impacted upon the children; I reject his evidence in that respect. These children have been and continue to be exposed to the high levels of conflict between their parents.
The father does not have respect of the mother’s role as parent and the mother does not respect the father’s role as a parent. Examples of the lack of respect were expressions such as ‘save your hard dug money’ implying that the mother was a gold digger. The father called the mother a ‘stalker’.
In an electronic exchange between the parties in June 2014 the following occurred:-[8]
[8] Exhibit F2, pages 128 and 130.
Father to mother
[Child] has a temp and is not going to school today. Let me know when and where you want to collect him. No rush.
Mother to father
Oh dear, poor thing, will be a while however as I am seeing the builder today which usually takes ages and also another appointment. Probably won’t be back to [Z] until lunch if that’s ok?!
Father to mother
No worries
Mother to father
Children are too young to be in a 50/50, they need to be a lot older before this happens. This isn’t just my view but has been backed by research which you should read. A possibility is having the children stay with you three nights they already stay every fortnight and extending this so that they will stay overnight on extra two nights, they will have dinner with you (Monday Thursday). This means you will see them very regularly (won’t be more than three days I between) and the drop off point is the school/child care. This means we wouldn’t have to see each other and we wouldn’t have to travel long distances to pick up the children and drop them off, let me know your thoughts as [my solicitor] wants instructions for the seventh. Thanks.
Father to mother
Can you confirm the time you will collect [the child]
Mother to father
Not sure, am visiting my father. Are you leaving [Z] sometime soon? I’m assuming U R not going to respond to previous text?
Father to mother
No rush, you said you were going to collect him at lunch time, just wondering what time? I have given him a sandwich and he is happy. With regards to u (sic) other text, at what age does fifty fifty become ok?
Mother to father
Can’t answer that, I would need to get professional advice and get back to u before going to court. Not for some time I imagine.
Father to mother
R u (sic) coming into town at all today? If so what time?
Mother to father
I thought you had read all the research and had professional opinion along with your own? I am not coming back to town today.
Mother to father
Fifty per cent hinges obviously on [youngest child’s] maturity. I haven’t read the research for some time but will revisit it and let u know. Your lawyer should be up to speed with the current research and what is likely re care arrangement given the children’s arrangements and when this may change in the future. Maybe talk to him like you said you were going to do …
Mother to father
Is [the child] still sick?
Father to mother
I am fully informed and quite aware what happens in normal situations. He is resting. ‘lunch time’ is quickly progressing to you collecting him this afternoon when you get back here with everyone as I predicted it would! I like looking after him so it’s all good. Would help if you could do what you said you were actually going to do though.
Mother to father
Sorry I got held up with my extremely sick father. Would you like me to rush back now and collect him or after I collect the others?
Father to mother
This arvo is fine!
Father to mother
He still has a temp.
Mother to father
It is good that he stays put then but I won’t be back in [Z] until 5.30, is that ok?
Mother to father
Please do not tell the children that I am mean to my father. Also, don’t infer that I would dishonestly use my father’s ill-health as an excuse not to collect [the child] today. In fact is my father extremely ill and I was visiting him today. Don’t put either of my parents down in front of the children!
Father to mother
?
Mother to father
[Child] said this is what you said to her, while you are last text is obviously very sarcastic.
Father to mother
Not sure which text you mean? Maybe it’s just your guilt? It would be a great idea if you didn’t say anything at all around [the child] from what you have said to me over the past couple of years unfortunately …
Mother to father
Yes, it’s all about me, how surprising …
Father to mother
That’s funny a couple of days ago it was all about me I think?
Mother to father
Quote from [child] this morning (did you know mummy that daddy is actually scared of you, he said you are viscous). How dare you say these things to the children about their mother you’re meant to be the better parent. I’m your world! Grow up!
Mother to father
Maybe you should have added ‘scared’ you were when you were pursuing me around the house hitting, kicking and intimidating me, throwing things at me, ranting at me for hours …
Father to mother
As usual you read way too much into things. As for ‘viscous’ glutinous nature or consistencies; sticky; thick; adhesive. I didn’t say this. If you mean vicious I didn’t say that either although thinking about it probably pretty close to the mark. I am not sure whether you are more a comedian or a psychopath? You never needed [website omitted] more likely [website omitted]. One thing I can guarantee is that unlike you I will always speak the truth. Best thing you can do is behave with more credibility and save yourself from yourself …
The mother goaded the father and this is an example of the poor communication between the parties as recently as June 2014 in which each wound the other up and neither ended up contained in their communication. These parents would do well to remember the old adage:-
Two minds are better than one, but
One mind is better than none.
Either one of them could and should have taken a step back.
The father conceded that he limited the mother’s access to the internet on one occasion and at one stage removed a camera and took away her credit card. The father denied he videoed the mother although he said he had told her he had done so.
Another example of the conflict between the parties arose over the father retaining the chattels of the mother because he believed she had retained a lap top. The conflict in relation to this was frankly infantile and indicative of the ongoing lack of regard and respect for each of the other.
The father’s response to wanting a good relationship with the mother seemed rehearsed. It was different from the reality contained in the text exchanges between them.
Whilst the father obfuscated about some questions at other times he was frank and clear. He has a determination that the children should spend equal time with him irrespective of the needs of the children, his heavy workload and his desire to continue to run the business. In many ways it is all about his needs rather than those of the children.
In terms of the relevant factors under the Family Law Act:-

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

The children each have a meaningful relationship with each of the parents and there is overwhelming benefit for such relationships to continue. It is the challenge of shielding the children from the conflict between the parents that is a major feature.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

The mother complains that the father committed family violence during the course of the marriage. That is to some extent admitted by the father. He says however, it was in response to violence perpetuated on him by the mother.
I find that there was violence in the relationship between the mother and the father and this was initiated through the abusive verbal exchanges between the parties often in the presence of the children.
In the mother’s affidavit filed 20 September 2014 at paragraphs 55, 56 and 57 there were allegations of physical violence which the father conceded although there were issues about the date and the alleged provocation.
The Family Consultant observed in her background to the 2014 report:-
4. Each parent described that during their relationship the other parent would belittle and taunt them in an unrelenting manner. They each claimed that they would endeavour to ignore the other parent’s provocation but ultimately they would get to a ‘breaking point’ when they would retaliate verbally and physically which at times resulted in them inflicting and sustaining bruises. They each alleged that the other parent would accuse them of having an underlying psychological problem that placed the accusing parent and the children at serious risk of being harmed by them. Each parent acknowledged that the children witnessed the conflict between them and some physical altercations. In regards to the emotional abuse of each parent to the other during their relationship, [the father] reported that he had felt like he was being scolded by a school teacher. His affidavit material documented that [the mother] had taunted him about being overweight. [The mother] reported and documented that [the father] criticised her parenting and her lack of financial contribution. She stated that [the father] would confiscate items until he determined her attitude towards him had improved.

I am satisfied that this is a relatively accurate description of the background.
Neither party were contained in their behaviour, and the father is a much bigger person than the mother. Fortunately, the physical violence between the parties has ceased and as I said earlier, each of the parties has assured me, through their applications that the children are not at risk of harm from the other parent in the unsupervised care of the other parent.
What is left however is the significant and constant conflict between the parties where they cannot speak to each other and where even their communication through text is abusive to each other.
Unsurprisingly, each parent blames the other for the ongoing toxic relationship between them which in turn adversely impacts upon the children.

Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

I accept that the wishes of the children are not a significant factor and given the outcome they will be spending significant and substantial time with the father and will be able to spend time with his extended family.

Section 60CC(3)(b) the nature of the relationship of the children with:

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

The children have a strong relationship with both parents and in turn both parents love each of the children and wish to have loving, serious and significant involvement in their lives.
Both parents have involved their broader families in the lives of the children.
The Family Consultant said in her evaluation:-
45. [The mother] has been primarily responsible for the children’s care with [the father] having a secondary role in meeting their day to day needs. The children have experienced a wide range of enjoyable activities when their father was part of the family group prior to the separation and continue to do so with their father post separation. [The father] continues to spend mostly recreational time with the children. Children are less likely to present with challenging behaviours when they are occupied and enjoying themselves.
I accept the facts underlying the evaluation and the evaluation itself.
The mother has been the primary carer for the children since their respective births. The mother seeks to limit time by reference to routine. I accept that the children need routine, but that can be achieved in the context of significant and substantial time. It would be difficult in the context of equal time, particularly give the parental conflict and the nature of the father’s work and working habits.
The children have a close relationship with their elder sister and it is in their interests that such relationship continues.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;

The mother is the primary carer and the father wishes to spend equal time and continue his entrepreneurial business endeavours, he has and will find it difficult to balance these competing time challenges.
Both parents participate in the parenting decisions although there is a sense, on the mother’s part, that the father endeavours to dominate her. However, the mother is no shrinking violet and is robust in their email exchanges.[9]

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

[9] Exhibit F2.

I accept the father has been the primary income provider for the family since separation and has met the financial needs of the children at least adequately. It was not to the satisfaction of the mother but that is not the test or principle.
The property settlement has taken place and the mother is likely to return to paid employment in the near future. Having regard to the child support orders I propose to make, the consent property orders of May 2014 and the financial agreement regarding spouse maintenance, each party is now financially self-sufficient.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

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

The children are in the process of changing the place of their home. The mother is unsure of where she will acquire or build a house. I accept that she is in satisfactory accommodation and she has the resources and desire to find better accommodation.
Equal time as proposed by the father will adversely impact on the children’s relationship with their elder sibling. The Family Consultant was worried about this approach, as was I.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

Both parents live in Hobart and although they are some distance apart in relative terms they are able to manage those distances.

Section 60CC(3)(f) the capacity of:

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

to provide for the needs of the child, including emotional and intellectual needs;

The parents have differing parenting styles and it seems that they are likely to parallel parent these children into the future.
The father gave evidence in relation to complaints made by the mother in particular the context of their disagreement. It is clear from this evidence that the father struggles to fit in all that needs to be achieved in terms of his involvement in the day to day activities with the children and his business. That is not a criticism of the father but an observation of how he conducts his life. The father struggles to attend all of the children’s school functions and seeks to be reliant upon the mother providing information about the children’s activities. They are normally readily available to him independent of the mother.
Unfortunately, the father does not see that his interaction with the mother (albeit at times in circumstances where he sometimes is provoked) is poor. The examples of the text messages between the parties amply display the aggression between both parties and to each other.[10] The father conceded that some of his expressions were authoritative in nature.
[10] Exhibit F2 annexure A to mother’s affidavit filed 29 September 2014.
The father denies he denigrates the mother. Given the evidence of the language used between the parties and the evidence in these proceedings, I find that the, father from time to time, denigrates the mother. Given the evidence, I find that the mother and father at times denigrate or belittle the other in the presence of the children.
The father asserted that he is the better parent and gives limited acknowledgment to the mother’s parenting. This is despite examples to the contrary such as the mother making arrangements for the children to buy Father’s Day gifts and the like.
The father says that he is the disciplinarian and he is more likely to set boundaries.
The difference in parenting between the parties is clearly seen in the family report where, at paragraph 17 it says:-
17.[The father] described himself as having “right-wing” and [the mother] “left-wing” values, which he equated in parenting terms as him setting clear boundaries for the children compared to [the mother] being inconsistent and more lenient in her parenting. He believes the children should have equal exposure to each parent’s values and parenting.
The father’s view is that the mother does not cope with parenting.[11] As I indicated earlier I do not accept that view.
[11] Family report paragraph 16.
The father once described the mother’s eldest child as ‘rude, obnoxious and spoilt’. He conceded that she had missed many school events and is of the view that his relationship with the children is more important than the children’s relationship with their sibling[12] and said:-
… Whilst I acknowledge the importance to all four children maintaining lifelong relationships, I maintain that such relationships are secondary to the relationships between parents and children.
[12] Father’s trial affidavit 26 September 2014 paragraph 87.
The approach is not entirely consistent with good parenting.
I repeat my earlier comments and findings that the mother winds the father up, she provokes him and sadly he reacts to that provocation. The mother cannot sit back and assert that this is a one way street. Both these parents should hang their heads in shame.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

This is not a relevant consideration.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant issue.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

The father submits correctly that the parents have demonstrated appropriate attitudes to the children and the responsibilities of parenthood, except for the conflict, which the father says ended in 2012. He also claims that the children have been protected from conflict since Easter 2012.
As between each of the parents and the children, the parents in isolation have a generally sensible attitude to the responsibilities of parenthood.
As to each other, neither parent has made any meaningful steps to resolve the conflict that exists between them. I repeat the comments I made in this regard elsewhere in these reasons.
The parents are well educated and are each able and willing to meet the children’s intellectual needs. The parent lack respect for each other and have different styles of parenting the children. Sadly, there is little I can do in that respect.

Section 60CC(3)(j) any family violence involving the child or a member of the child's family;

There are no family violence orders.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family, any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;

I have dealt with this elsewhere in these reasons.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

If the parents continue to ‘war’ with each other and disrespect each other, it will be inevitable that these children will be exposed to further litigation. There is little that this Court can do in the context of the present circumstances of the children.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

I have considered all of the evidentiary material which was put before me.

DISCUSSION

Despite the comments made earlier and perhaps arising from the discipline of preparing for a defenced hearing, much of the parenting arrangements have been by consent. The areas that needed determination were:-
(a)Equal time, essentially during school term; and
(b)When the father could travel to visit family in the USA.
(c)Changeover at Christmas.

Equal Time

There is an order for equal shared parental responsibility and I have considered equal time.
The father set out the basis of his equal time argument in his summary of argument.[13] I accept that the father was involved in the care of the children prior to separation on a significant basis; however, as I have said elsewhere the primary carer of the children was the mother.
[13] Exhibit F5.
The father has made himself available for the children when and if he is able although his involvement with the schools has been somewhat limited due to his work commitments and, no doubt, this litigation
The Family Consultant said:-[14]
51. It is practically possible, but not recommended that the children live in an equal time arrangement for the following reasons;
a.The children clearly have a good relationship with their father with the current arrangements. There is no need for them to spend additional time with him to strengthen the father/children relationships.
b.[The father] can continue in his role of financially supporting the children and caring for them part-time. It is not as easy for [the mother] to re-enter the work force, other than on a part-time limited basis, with four children to care for and she would earn a much lower wage.
c.[The mother] clearly finds parenting the children difficult. It is likely that she will be moving from the family home, and although this move is wanted by her, this will be an added stressor. It will be more realistic that [the mother] re-enters the work force when the property dispute is settled, she has re-established herself in the home of her choice, and when the children are older.
d.[The child B’s] relationship with her mother appears to be strained. It would be simplistic to conclude that [B’s] problematic behaviour is primarily related to [the mother]’s parenting, albeit even if this was so; addressing the contributing issues in her household is also indicated, rather than having a change of the parenting arrangements.
e.The children are likely to experience weekly or fortnightly transitions of living with their mother and with their father on an equal time basis more challenging compared to having the stable base of living with their mother and spending time with their father. The divide between them and their older half-sister would also increase.
[14] Family Report – paragraph 51.
I accept the underlying facts and the evaluation. Counsel for the father said I ought not to give significant weight to that evidence as the Family Consultant had limited interaction with the children and her views were fixed. I disagree with that submission and given my opportunity to see and hear the parties over a period of days I can and do accept the evidence of the Family Consultant.
In addition, I have had regard to the matters raised by counsel for the mother in terms of the following additional features:-
·no verbal communication between the parties since Easter Friday 2012;
·the mother’s history of being the primary carer of the children;
·the difference in parenting styles particularly in relation to discipline;[15] and
·the relationship between the three children and [the child N] which is a significant feature.
[15] Mother’s trial affidavit filed the 29 September 2014, paragraphs 104 and 105.
Given all of the those circumstances, and the matters discussed above, I determine that equal time would not, in the circumstances of these children, be the best outcome in the short or even medium term.

Significant and substantial time

The Family Consultant recommended, in the light of the conflict between the parties and the history, that there should not be additional time. The mother sought an increase in time given the relationship between the children and the father.
Given the age of the children and the matters alluded to earlier in these reasons I will increase time during school term on a limited basis. It will enable the children to spend significant time with the father. I will generally adopt the suggestion proposed by the mother, particularly bearing in mind the tender age of the child L and the ongoing conflict and the other matters I have discussed above.
The orders that I will make will provide that the children spend four nights per fortnight with the father during school term in 2015 and five nights in the years thereafter. That is, in week one, from after school on Friday to the commencement of school on Monday morning (or a Tuesday if the Monday is a public holiday) and in week two from after school on Thursday night to the commencement of school on Friday morning. I will be increasing the time to five nights per fortnight in 2016. This will also assist the mother with child care.
I do not see this as the start of an increasing time arrangement given the conflict and poor communication between these parents.

Communication by Telephone

The parties agreed to telephone calls twice per week between the children and the father.

School Invoices

The father sought an order (it was not clear if this was in the parenting or child support case) that the mother would arrange for an invoice for N’s fees to be separated from that of the other children, presumably to ensure that he only paid fees for his own children. It was not clear as to the jurisdiction of power to make this order, particularly that it involved the actions of a third party.
In any event the mother said that she would use her best endeavours to ensure that separate accounts were sent from X school for N as against the fees and charges levied against B and L. I noted that non-binding assurance.

Overseas travel

The mother says she has no concerns about the father taking the children to visit the United States of America. Her concerns arise from the age of the children and the father’s capacity to cope with three children on such a trip.
These concerns were considered by me in the context that the mother and father took the then five month B (together with N, aged five years) to the United States. The parties were away for about five weeks. The mother’s explanation as to the difference between then and now, was that she was present to care for the children.
I am satisfied that from December 2015, it is appropriate for the father to travel to the United States with the children. The mother does not otherwise have concerns about the father returning the children and the United States is a signatory to the Hague Convention in respect of the abduction of children.
The Family Consultant was supportive of the children travelling overseas and thought that the mother’s approach in waiting until the youngest child was eight was somewhat over-cautious.
In addition the father shall be permitted to take the children to the United States for periods of three (3) weeks each alternate year after the 29 December 2015 arrangements and subject to the same conditions as provided above and with the mother to do likewise.

Christmas Day, End of year holidays and Easter

There is the issue about the changeover time on Christmas Day. The father seeks a 12.00 noon changeover and the mother seeks a 3.30 pm changeover.
I struggle to see any meaningful forensic issue in this determination, and it is further evidence of the parental conflict to which I have earlier alluded.
The father’s evidence was that it was important that the children spend a Christmas morning with him to enable them to celebrate with one extended family in the morning and then have another celebration with the other extended family in the afternoon. This will still occur but it is structured towards what I consider as meeting the needs of the children.

I had contemplated the Christmas Day changeover time suggested by the father, vis 12 noon, however, I decided not to adopt that proposal on the basis that much of the morning would be spent by the children packing and getting ready. The mother’s later proposal (which I have slightly modified) would enable the children to spend time with each parent on that special day and enable them to have time with their extended families.
The children have been with the father on Christmas Eve for the last two Christmas Days and it is appropriate they be with the mother on Christmas Eve and Christmas morning this coming Christmas. Consequently, in 2014 the children will be with the mother from half the holiday period before and leading up to Christmas Day and until 3.00pm on Christmas Day. The children will spend the first part of that Christmas holiday period with the father.
Given that the subject children live with the child N and I find that it is important for the children share time on Christmas with N and the mother’s extended family, I have determined that a 3.00pm changeover would be a better more child focussed outcome. I intend to structure the Christmas school holiday periods on alternate New Year’s Eve basis followed by an approximate week about basis, with the children to be returned shortly before school term commences.
The children will be with the mother up to Christmas Eve/Christmas morning in 2014 and each alternate year thereafter. The children will be with the father up to Christmas Eve/Christmas morning in 2015 and each alternate year thereafter.
As to Easter, in 2015 and each alternate year they should be with the father from 12 noon on Easter Saturday until 12 noon on Easter Sunday and each alternate year thereafter and in 2016 and each alternate year thereafter the children should be with the father from 12 noon on Easter Sunday until 12 noon Easter Monday. This will mean that in 2015 the children will be with the mother from 12 noon on Easter Sunday until 12 noon on Easter Monday and each alternate year thereafter and from 12 noon Easter Saturday until 12 noon Easter Sunday in 2016 and each alternate year thereafter.
Given these reasons, I make the orders set out at the commencement of this judgment.

Application for departure from the assessment made and non-periodic child support

In terms of child support, on 1 August 2014 the mother filed a departure application to be heard at the same time as the parenting proceedings. This was pursuant to s 116 of the Child Support Assessment Act and a consequent application for a departure from an administrative assessment and non-periodic child support.
Section 99 of the Child Support Assessment Act confers jurisdiction on the Family Court in relation to matters arising under that Act. Any such proceedings are to be conducted under the provisions of the Family Law Act.[16]
[16] Section 100 of the Assessment Act.
In this case there are two child support assessments in evidence before the Court. The first is the assessment issued 15 July 2014 and the second, being that which is the subject of the departure application, was issued 28 July 2014. The second assessment is in identical terms as the first assessment and it is the second assessment to which this departure applies, the first assessment being moot given the issue of the later one.
The departure orders that the mother initially sought was as follows:_
For the period commencing 29 July 2014 to 28th February 2015, the periodic child support payable by the father to the mother be set at the annual rate of $75,296.00 ($482.66 per week per child);
For the period commencing from 1 March 2015 and ending 31st December 2022, the periodic child support be set at the annual rate of $78,936.00 ($506.00 per week per child);
The child support amounts set out in paragraph a. and b. herein be adjusted on 1 July each year commencing 1 July 2015 in line with the movements in the weighted average Consumer Price Index;
That by way of non-periodic child support, the Applicant pay the following expenses of the children:
·    The private school fees for the children;
·    All costs of and incidental to the children’s schooling, including but not limited to the following:
·    School uniforms, sports clothes, shoes and sporting equipment;
·    School books, stationary and miscellaneous items including computer equipment;
·    School levies;
·    School excursion expenses including interstate trips;
·    Fees and expenses associated with all extra-curricular activities which are to be undertaken by the children as agreed between the parties including swimming, music, rowing and horse riding. Such costs and expenses to be paid directly to the school or service provider;
·    All proper medical and dental expenses for the children in excess of which is refundable by Medicare or the private health insurance provider.
There was no time applied to the non-periodic order sought.
The amount sought by the mother for periodic child support was modified during final submissions, given the clarification of the mother’s income and expenditure. At that time the mother sought a departure from the administrative assessment to provide that the father pay $65,000 per annum which is $416.66 per week per child being a total of $1,250 per week. Further, that this periodic child support operates from the date of assessment, vis July 2014 until 31 December 2022. The mother sought that that child support be adjusted on 1 July each year in accordance with the weighted average consumer price index.
The application gave rise to one and possibly two questions:-
(a)The first question, is a threshold question as to whether the Court should consider the substantive departure and non-periodic applications or leave the parties to seek and/or oppose child support change through the administrative processes; if on the other hand the threshold is crossed then,
(b)The second question is consideration of the substantive child support issues relating to the applications for a change of a periodic child support assessment and for non-periodic child support.

Whether the Court should consider the substantive application pursuant to s 116 of the Child Support Assessment Act or leave the parties to deal with the issues through the administrative processes

Section 116 of the Child Support Assessment Act provides:-
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a) …
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) …
Note 1: For the orders that a court may make under this Division see section 118.
Note 2: With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3: …
(2) An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.
There is no issue that:-
(a)the liable parent [the father] and carer entitled to child support [the mother] are parties to an application pending in a court having jurisdiction under this Act [the Child Support Assessment Act];
(b)the Registrar was given notice of the proceedings and has not sought to intervene; and
(c)an application may be made by the carer [the mother]in relation to the child/ren
Therefore the issues for me to determine are whether under s 116(1)(b) of the Child Support Assessment Act it would be in the interests of the liable parent and carer (the father and mother respectively) to consider, in the special circumstances of this case, whether an order should be made. This is a discretionary determination exercised in the light of the statutory provision.
I repeat what I said in my earlier reasons in Kemp & Parsons [2014] FamCA 865 at paragraphs 28 to 34 in which I said:-
28.The question for the Court to determine is whether it is:-
(a)satisfied that it will be in the best interests of the liable parent; and
(b)the carer entitled to child support.
to consider whether an order should be made under this Division in relation to a child in the special circumstances of the case.
29.The special circumstances referred to in s 116(1)(b)(ii) is different from the special circumstances referred to at the commencement of the section. It does not relate to the factors under s 117 but relates to that threshold consideration.
30.Thackray J noted in Harris & Ellis [2011] FamCAFC 90 at 23 and 24 the following:-
23.There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
24.The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
31.His Honour noted that in the clear understanding that the policy that:-
35.The clear policy intention of the legislation is that the internal review/objection processes of the Agency are generally to be preferred over court based processes. Nevertheless, s 112(2) and s 116(1)(b) make clear that there are circumstances in which it will be in the interests of the parties for a court to deal with the dispute, even when the Agency’s internal objection procedures have not been utilised, because the court is, at the same time, already dealing with matters involving the parties.
32.The Child Support (Assessment) Act provides an administrative review process to which Thackray J referred to above.
33.The extant proceedings do not necessarily need to be property or spousal maintenance proceedings (see Blanchard & Blanchard [2009] FamCA 321 at 55). There is no requirement under s116(1)(b) for there to be such financial proceedings of one form or another.
34.I accept the submissions made on behalf of the mother that the onus on establishing special circumstances is that of the mother’s.
In Harris & Ellis (supra) the mother asserted the following circumstances:-[17]
(a)The dispute between the parties has been long running and that it is the father’s desire for there to be a long term joint parenting arrangement for the children. The submission on behalf of the mother was that the determination of the complex financial arrangements regarding child support would run for some time in the child support administrative system and it could be quickly and effectively resolved in the Family Court. I accept that a determination in the Family Court is likely to be more prompt (albeit more expensive) than in the child support administrative system.
(b)The mother asserted that she will adduce evidence as to the high cost of child care in the event that she returns to work. The mother has not been in paid employment since 2006 although she asserted that it is open for her to return to work.
(c)The mother asserted that the father has shown a disinclination to be co-operative with the administrative process. The father asserted that he will comply with the orders and has complied with the orders although he wishes to make payments directly for the needs of the children rather than through the mother. It is submitted that there is complexity to the father’s financial affairs and given his income and his financial statements I accept that that is likely to be the case.
36.As a consequence of the complexity it is likely that lawyers and accountants will need to be involved so that there can be a clear understanding of the financial circumstances of the father to enable an adequate determination.
[17] At paragraph 35.
I accept that there has been a long running dispute between the parties and that the legal proceedings between them have been adversarial and intense. In evidence the father gave evidence about the stress it imposed upon him. If a determination is not made in the context of this proceeding it will need to go firstly to a change of assessment application, the administrative review and then almost inevitably to the Federal Circuit Court. This could take some time and would involve the parties in ongoing litigation and cost.
The parties have already been engaged in property litigation and much of the complex financial circumstances of the father, including his strong income and the structures of his various businesses, are before the Court and are reasonably able to be considered in circumstances where that may be difficult in an administrative review, particularly having regard to the need to cross-examine in relation to those financial circumstances.
The father has significant assets but also significant liabilities. His evidence (albeit disputed by the mother) is that his net assets total just under one million dollars.
The father contended that this Court’s reviewing or departing from child support, at this stage, would be unjust to him given that he entered into the property orders (dealing with property spouse maintenance) on 20 May 2014 year.
The mother lodged an application for periodic child support in January 2014 after the father reduced the voluntary support he was paying her in December 2013. That application was caught up in the bureaucracy of the Child Support Agency and an assessment did not issue until July 2014 and was delayed over issues of production of the children’s birth certificates. The mother had raised with the father her concerns about the adequacy of child support from January 2014 and onwards.[18]
[18] Exhibit F2, Emails mother to father dated 6 January 2014 (page 95), 12 March 2014 (pages 105 & 106), 14 April 2014 (pages 113 & 114) and 23 May 2014 (pages 122 & 123).
The father said he was unaware as at 20 May 2014 that the mother had made any child support application.[19] I reject the father’s evidence in that respect and in doing so note the material referred to earlier, including the evidence provided by the father as to text exchanges between the parties on 23 May 2014:-[20]
[19] Father’s affidavit filed 19 August 2014, paragraph 14.
[20] Exhibit F2.
From mother
Obviously the next step now is to work out the children’s arrangements plus child support issues between us without having to go through court and having a Judge decide. Please forward what u (sic) propose in respect of this sooner rather than later. In respect to child support u (sic) will be aware that there is a provision to have child support reviewed based on a person being a high income earner so obviously $775PW isn’t going to work …
From father
Yes would be good to have it all sorted. The next step is the chattel list and me focusing on being able to raise the money on time. Most likely I will put my big boat on the market next week.
I have read these text messages in the context of the surrounding text messages. It is clear that the father anticipated that there will be child support issues. He had been paying the family $1,100 per week, then reduced that amount to $775 per week in December 2013. Then an assessment was issued by the Child Support Agency on 28 July 2014 requiring payment of $616.75 per week (there being a seemingly identical assessment issued earlier in July 2014). These July 2014 assessments were based upon the father having a maximum capped income of $176,426.
The father well knew that the level of child support was a live and continuing issue prior to and at the time the property orders and spousal maintenance settlement were entered into in May 2014.
This Court is well equipped in the circumstances, to have regard to the property settlement to which the parties entered into in May 2014.
The special circumstances in this case include the conflict, the large income of the husband combined with his large liabilities given the property settlement and given his businesses and the other issues relating to private school fees and additional costs sought by the mother.
I accept the legislation discourages parties using the curial process and encourage the parties to the administrative process. However, I am satisfied in this case, given the evidence before me and given the financial circumstances of the father and the mother, that the special circumstances exist pursuant to ss 116(1)(b)(ii).
I am also satisfied, having considered all of the facts, that there are overall special circumstances which enable the exercise of discretion in favour of the mother to consider her departure applications. Further, I determine that it is in the interests of the father and mother for this Court to consider whether child support orders should be made, given the conflict, the income of the father and the various other matters to which I have alluded.

Departure from periodic child support assessment

The mother seeks a departure from the assessment as follows:-
(a)the current period to 28th February 2015 periodic child support to be set at the annual rate of $75,296 ($482.66 per week per child); and
(b)from 1 March 2015 to 31st December 2022 (a period of seven years) periodic child support be set at the annual rate of $78,936 ($506 per week per child) and be Consumer Price Indexed.
The current assessment is for $616.75 per week ($205.58 per week per child). The initial application was lodged on 6 January 2014, an assessment issued on 15 July 2014 and the current assessment issued 28 July 2014, with an assessment period from 7 July 2014 to 6 October 2015.
The mother seeks a departure from that assessment in respect to the amount of the child support paid and seeks that the assessment continues for a period of about seven years.
The mother claims that the non-fixed expenditure for the children is in the sum of $1,142 per week and with fixed expenditure the total cost her care of the children is $1,448 per week.
The mother is on leave from a government department and will return to work at the end of February 2015 after the children return to school for the year. She will work three days per week and will earn $753.31 per week after tax.
The mother believes she is not eligible for income support, by way of parenting payments, from Centrelink once she receives the settlement funds. Her evidence was:-[21]
I lodged an application for both parenting payment and family tax benefits. During an interview with Centrelink, I was informed that there was no point in furthering my application for parenting payment as I would not be eligible once I received the settlement funds. I therefore did not pursue this aspect of the application believing that I was not eligible for any entitlement.
[21] Mother’s affidavit filed 12 September 2014, paragraph 25.

The mother says her grounds for departure for the purposes of subparagraph (1)(b)(i) are as follows.

Section 117(1)(b)(ii)(A) that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division;

In terms of this part of her claim she asserts a number of facts, to which I have had regard.
The mother has the full time care of the children and of the child N.
Up to December 2013 the father paid the mother $1,100 per week. The mother says that this was by way of child support; I do not accept that characterisation by the mother of those payments or the subsequent payments of $775 per week. I accept that the mother has had difficulties managing financially from December until August 2014, when she received the property settlement.
The mother says she will struggle financially when she returns to work. Given the property settlement and the level of child support, I do not accept that contention. She will need to carefully budget, but she will have an income from a variety of sources. The mother will re-commence work in early 2015 and will be earning about $753.31 per week after tax. She did not, in her financial statement, disclose the interest she was receiving on the investments of the settlement money which was about $40,000 per year (3.8 per cent against $1,050,000). The mother has purchased a block of land for about $300,000 and says there will be a $10,000 cost associated with that. When she settles the purchase of that property the income from the investment will drop from about $770 per week to about $540 per week. The estimate to build the house is $588,000. The mother’s plan is to retain approximately $160,000 in the bank account to earn interest. That interest will be earned conservatively.
The mother claims that there will be a cost of child care. The father has expressed that he is willing to assist in that regard in a practical way, although given his work commitments I have some concerns as to his ability to manage this on a long-term basis, however, with the mother working three days per week and it is not beyond the wit of the parties to manage this issue, particularly as the father will take the children one afternoon and morning per week during school term.
I have considered this ground and I am not satisfied that this ground amounts to a special circumstance within the meaning of s 117 of the Child Support Assessment Act.

Section 117(2)(aa) - that in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent;

Pursuant to this subsection the mother claims that in the special circumstances of the case her capacity to provide financial support for the children is significantly reduced because of the responsibility of the parent to maintain the child N. There is not an issue that the mother has responsibility to care for N.
N is aged almost 12 and she is in the full time care of the mother. N’s father pays $260 per week child support.
The mother choses to send N to a private school and she has been attending that private school for some years, the mother having enrolled N at X School before she had the other children.
N is passing from primary school to high school at this time and the mother is returning to work in 2015. I have considered this ground but I am not satisfied that alone, or in combination with others, it amounts to a special circumstance to which the mother eludes.
As the school fees were primarily paid by the child support, N has otherwise been supported primarily by the father. It is convenient, but not necessary, for the mother to pay private school fees for N. It is axiomatic that this decision to send her to a private school is that of the mother and the cost should not be directly or indirectly visited upon the father.
The cost of financially maintaining the child N, according to the mother, is $642 per week (plus a share of Foxtel and a share in health insurance). As I have discussed elsewhere in these reasons I am satisfied that the figures provided by the mother are aspirational and/or exaggerated.
I do not accept that they are at the level asserted by the mother. If the school fees are taken from that sum it leaves about $427 of which it costs about $167 to care for N and, as I said much of that sum is not one which I treat as accurate. The mother says the dichotomy of the moneys available to the children and N is problematic. That may well be the case, but it is not a basis for an indirect imposition upon the father to provide child support for N.
The mother says she would be now be happy for the children to attend non-private schools, however, that would be in contradiction to the shared parenting plan for the education of the children. The father says this form of education is better for the children and until recently the mother has at least accommodated that view.
It is possible for N not to go to a private school in years to come and save the mother some $10,000 per year. Whilst it would be uncomfortable in the household it would be unjust to inflict the cost of that school upon the father bearing in mind he is meeting the cost of the private school fees for the parties’ children.
I have considered this ground and I am not satisfied that this ground amounts to a special circumstance within the meaning of s 117 of the Child Support Assessment Act.

Section 117(2)(b)(ib) & (ii) that in the special circumstances of the case the costs of maintaining the child are significantly affected because of high child care costs in relation to the child; and, because the child is being cared for, educated or trained in the manner that was expected by his or her parents;

Child Care Costs

Neither party were cross-examined on their child care costs. The father asserted that the amount payable by the mother for child care costs would be about $42.75 per week.
In terms of the high child care costs, the mother has adduced evidence of this in relation to the children (other than N) attracting high child care costs.
The mother claims that she does not have enough leave to care for the children during school holidays, as she has only four weeks annual leave. There are approximately 11 or so gazetted weeks of school holidays per year, the precise amounts for the subject private schools may be slightly different. Included in those holidays are a number of public holidays such as Christmas, New Year, Australia Day and at times Easter. The mother will have four weeks annual leave in each year. The father has annual leave and the children will be with him for half of the school holiday periods.
The mother’s evidence is that child care will cost $150 per week during school term period. This will not apply on Fridays when the children are collected by the father and on Mondays when the children are returned to school. Similarly it will not apply on the Thursday afternoons when he collects the children and the Friday mornings when he returns the children. It will apply for the days when the mother works.
I am not convinced that the cost of child care in 2015 will impact to the extent asserted by the mother and any increase will be able to be managed by the income that the mother is likely to receive through either her employment, investments or the departure order that I have made for other reasons.
The mother complains that she will need to arrange some before and afterschool care during school term and provide detail in that regard. There is some evidence that mother will be entitled to a Government child care rebate and the father will take the children (not N) for at least one morning and afternoon per week during school term. With co-operation this reduces the mother’s need for child care to two days per week.
The mother claims the cost of child care will be about $180 per week. Given the circumstances this is an exaggeration.

Private School Costs

I reiterate that which I have said earlier, including that the mother complained that the children are attending a private school and that she would be content for them to go to public schools. The mother enrolled N in a private school and has consented to the children attending such schools.
In terms of the departure application I have not reduced the child support by reason of the payment of private school fees (s 125 of the Child Support Assessment Act) and as such the mother’s concerns in this area are without foundation.
Given this these grounds I am not satisfied that that they amount to a special circumstance within the meaning of s 117 of the Child Support Assessment Act.

Section 117(2)(c)(ia) - The income, property and financial resources of either parent;

I accept that the father’s income is much greater than that of the mother. The father’s financial resources are equal or less but given his earning potential he is likely to recover much faster than the mother.
The father is now residing in the Z home and the mother with her mother, thus a saving in accommodation expenses for a period of time. The mother has purchased land but has not yet decided if she is to build on that land.
The mother has considerable capital available to her, to which I have alluded elsewhere in these reasons.
I have considered this ground and given the father’s income I am satisfied that this ground amounts to a special circumstance within the meaning of s117 of the Child Support Assessment Act.

Discussion regarding the departure application

The mother’s expenses

In terms of the mother’s expenses in relation to child support the mother was challenged on a number of aspects.
The mother set out in her financial statement expenses totalling $2,974.
The mother claimed that she pays rent to her mother, comprising of food, Foxtel, garden and general maintenance, totalling about $232 per week. This was reduced by $88 with a reduction to item 21 making a total of $2,886.
In relation to the weekly cost of food, the mother claimed she needed $520 but later conceded in evidence that the amount she actually spent was at or in excess of $400. The sum of $520 was an aspirational claim.
As to electricity, the mother claims an annual amount of $5,200 (i.e. about $100). This is approximately an average power bill of $1,300 per quarter. The mother says she gathered this information from enquiries she made of friends and family. At present she is staying at her mother’s home. I am satisfied that this figure was, in all the circumstances, exaggerated.
The mother claims $50 per week for house repairs in circumstances where she does not own a home and is living with her mother; accordingly I have disregarded that sum.
The mother says she has spent about $300 per week in legal fees. Given that the mother’s proceedings will conclude (hopefully) with this determination, that will also amount to a saving. In any event the father ought not to be called upon to pay legal fees of the mother, other than through a claim pursuant to s 117 of the Family Law Act.
The mother claims $190 per week for education expenses including fees and levies of $215 and holidays of $190 per week. The education fees relate primarily to N whose costs amount to some $642 of which the mother receives about $260 per week from that child’s father, leaving the mother to pay the balance.
The mother says she has health insurance payments of $67 per week. It seems that this sum includes the mother and N but not the children.
The father claims $67 per week for health insurance in his financial statement.[22] In his affidavit[23] the father says that he will pay the private health insurance for the children, he says:-
32. I have always paid and agreed to pay
…
h. Private health insurance at the top cover;
[22] Father’s financial statement filed 8 October 2014, paragraph 26.
[23] Father’s affidavit filed 19 August 2014, paragraph 32.
The mother’s evidence is that she pays medical insurance for herself and N, where she says:-[24]
13. In paragraph 32 [the father] indicates that he will pay the private health insurance for the children. I do not agree with this. I have to pay the same level of health insurance whether I cover one or four children. Given that I pay for [N’s] health insurance as well as my own, I propose the children be covered under my insurance policy, leaving [the father] free to seek a singles cover at a reduced rate than he is currently paying.
[24] Mother’s affidavit filed 12 September 2014 – paragraph 13.
There is no evidence that the father’s health insurance premium will fall or if it does by how much. I have factored in an estimated saving on the health insurance premium of $25 per week.
I had considered a notation of that saving but given this finding there needs to be little more added.
The mother claimed overall expenses for herself and her four children at about $2,900 per month.[25] Over all there should be a saving of about $500 per week which should reduce the mother’s expenses to be about $2,100 per week taking into account Foxtel. The father is to meet the cost of education and school uniforms and the like. He will also to meet the cost of reasonable extra-curricular school activities.
[25] Mother’s financial statement filed 12 September 2014 – item 33.
I am concerned that some of these expenses are inflated.

The mother’s income

The mother receives the following income:-
-    Centrelink  $129
-    Maintenance for the child N  $260
-    Child support from the father  $616
-    Estimated interest to mother from settlement             $540
-    Income from employment  $753
Total  $2,169
I accept that the income earned from the settlement will reduce further when the mother buys or builds her home. It is not clear what the tax liabilities of the mother will be in these circumstances. It is clear that a significant part of her earnings will be tax free and part will be taxed. The amount the mother disclosed as income to be from her employment is after tax, it is not clear whether that is tax at a higher rate or a lower rate.
The mother asserted that the cost of maintaining the children in the way in which she would like to maintain them is some $1,042 per week.[26] In addition to that there is other sums to which the mother refers to earlier in her financial statement making a total of between $1,200 per week and $1,443 per week for the children. It also includes some of the costs of the mother’s investment in the vacant land which she hopes to build on but which is, at present, simply an investment by the mother while she considers options for accommodation.
[26] Mother’s financial statement filed the 12 September 2014 Part N.
The mother’s claimed pet expenses seem high as are the claims for electricity, water, house repairs, children’s clothing (bearing in mind the father will be paying the costs of the children’s school uniforms and the like), children’s activities particularly in terms of entertainment and hobbies making a total of about $159 per week, repairs, gifts and the like.
Some of these expenses are aspirational.
The effect of what the mother seeks is that the father pays virtually all of the children’s expenses and in circumstances where the mother has an earning capacity and ought to contribute to some of the cost of supporting the children.
The father deposes that his business is under some financial pressure at the moment and that there has been a down-turn in income. I have given little weight to that assertion; however, his financial circumstances may be under some pressure into the future.
In her evidence the mother asserted that the father has significant assets, I do not accept their net value is much greater, if at all, than those of the mother. That is the case, however they are significantly burdened by debt. The mother claimed that the father’s income is approximately $700,000 per year, I accept that to be the case and that it is probably more. The father deposes in his financial statement of 8 October 2014 that he earns about $19,623 per week of which $5,000 is disposable income. The mother concedes that the father’s net disposable income is about $5,000 per week after tax, loan repayments and the like. From that sum he is required to pay child support and support himself.
It was submitted on behalf of the mother that I ought to have regard to the table of cost of children,[27] and I did so.
[27] Exhibit W1.
I accept the mother’s evidence that she will be returning to work at least part time in 2015.[28]
[28] Mother’s affidavit filed 12 September 2014, paragraph 753,
In coming to this determination I have considered the submissions made on behalf of the father that it was necessary to pay the mother about $1,150,000 and this had a profound impact upon his finances. Whilst that is a significant submission it needs to be seen in the context where the father is able to pay his alter ego the sum of over $300,000.
The father asserted that his businesses have suffered a significant downturn since 1 July 2014. He endeavoured to adduce evidence of his accountant, which evidence was rejected by me. The father gave evidence that in his experience there has been a downturn in the quarter 1 July 2014 to 30 September 2014. It is significant that no evidence was adduced as to any downturn in the two quarters before that time and given the conflict between the parties, the Court can be satisfied that the absence of that evidence is indicative that there is no admissible evidence to that effect for those periods.
The father has disposed of one of his businesses which was imposing significant financial hardship upon him and has disposed of other assets and liabilities. The father’s oral evidence is that the financial circumstances are causing him significant stress and worry, however this is not reflected in his spending habits of recent times.
It was open for the father to approach the valuers who initially valued the businesses to obtain updated valuations with the alleged drop of income in the September quarter, he did not do so. I am not satisfied that he has established that circumstance at this time.
The father’s company F Business contributes to the father other expenses including electricity, insurance, repairs and maintenance, telephone and fuel. The exact amount of those is not clear.
Given the means of the father and the needs of the children as outlined in the mother’s material, I am satisfied that there ought to be a change of assessment. The father has a profoundly larger income than that of the mother although the mother has a capacity to work which will increase over the years.
In this assessment I have included none of the costs of support of the child N.
I have considered the property settlement paid by the father to the mother.
In terms of the father’s resources he asserted that his investments and businesses are highly geared, and as I have said elsewhere, I accept that his financial expenses are high but that was taken into account in terms of his calculation of his $5,000 per week net available funds.
The mother complained that she does not wish to use the property settlement for child support. I have not factored her property settlement into her application for child support, but I have calculated the interest earned on those funds which is available for determination of the income.
The mother says that there would be more money available to the father if he had not invested monies in his company F Business. I have made critical comment elsewhere, however, the father is a businessman and part of that are his entrepreneurial skills. It is significant to note that the father, with his training as a professional, his skills as a businessman and assets totalling about one million dollars is earning income, at least gross, at the same rate in the 2013 tax year.
The mother says that the father should be criticised for employing a gardener and a cleaner at the subject property. Given the father’s significant earning capacity and the times he deposes that he intends to work and needed to be flexible that is hardly, in the circumstances, an unreasonable expense.

It would not be just and equitable or otherwise proper for a child support assessment to exceed the costs of reasonably maintaining the children. Child support cannot be used as a pseudo spouse maintenance application or a child maintenance application for a child other than a child of the parties’ relationship.
In determining whether it will be just and equitable to make such an order, I have regard to the financial circumstances of each of the parties and the disparity in their income earning capacity. I have had regard to the needs of the children, albeit at less than is as asserted by the mother.
I am conscious that the mother has the primary care of the three children plus the care of her elder child. The child L commences school in 2015 for three days a week and full time school the following year.

Just and Equitable

Given that I am satisfied that there is or are special circumstance upon which the mother is entitled to apply, having regard to the factors under s 117(2), I need to consider whether any change in the assessment would be just and equitable having regard to the provisions of s117(4) of the Child Support Assessment Act. In terms of that sub section:-

Section 117(4) provides in determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

(a)the nature of the duty of a parent to maintain a child

The effect of the assessment and the non-periodic child support is that the father is meeting the overwhelming cost of the financial educational needs of the children. In addition he will solely meet the costs of the care of the children when they are with him, which amounts to a considerable period of time, given the orders I will make.
On any assessment the father is carrying the major share of the financial support of the children.
I have considered this provision and I am not satisfied that this assists the mother.

(b)the proper needs of the child;

The mother claims that under the current child support assessment she is unable to meet the reasonable cost of caring for the children.
I accept that given her expenses and the available income from the father, there is some scope for additional support from the father, but not to the level sought by the mother.
The mother’s claim has some elements of an ambit claim and seems to be based on her notion that all the costs of child care should be met by the father.
I have considered this provision and I am not satisfied that this assists the mother.

(c)the income, earning capacity, property and financial resources of the child
(d)the income, earning capacity, property and financial resources of each parent who is a party to the proceeding;

I have considered these matters and considered the parties’ respective income, earning capacity, property and financial resources elsewhere and considered them in the light of this ground.
I have considered this provision and I am satisfied that this assists the mother, given the father’s income.

(da) the earning capacity of each parent who is a party to the proceeding;

I have considered the parties’ respective income, earning capacity, property and financial resources elsewhere and considered them in the light of this ground.
I have considered this ground and I am not satisfied that this ground amounts to a special circumstance within the meaning of s 117 of the Child Support Assessment Act.
I have considered this provision and I am satisfied that this assists the mother, given the father’s income.

(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:-
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain;

I have taken into account the duty and the cost of the mother in maintaining the child N.
I have considered this provision and I am not satisfied that this assists the mother.

(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child;

I have considered this provision and I am not satisfied that this assists the mother.

(g)any hardship that would be caused:
(i) to:
(A)to the child;
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and

(ii) to;
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;

by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

The mother claims hardship to herself and the children because of the disparity in the income, earning capacity, property and financial resources of the parties. Given the discussion elsewhere, the mother’s assets and income, I do not accept that that is the case.
I am not satisfied that the mother has established that she will suffer hardship in this regard and as such I have considered this provision and I am not satisfied that this assists the mother.

Whether it is otherwise proper to make an order

As to whether it was otherwise proper to make an order I have had regard to s 117(5) which provides:-
117(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support
I am satisfied that:-
(a)There is an administrative assessment in force and that the application is made by the carer entitled to child support. As such the Court has jurisdiction and power to make such orders; the Child Support Registrar has had notice and has not intervened in these proceedings.[29]
(b)Given the evidence before me and highlighted in these reasons that it is just and equitable to make the change of assessment orders and that it is otherwise proper.
(c)In terms of this finding I have considered the evidence in the light of the matters to which I am bound to consider as is set out in ss 117(4), (6), (7), (7A) and (8) of the Child Support Assessment Act.
(d)In determining what is otherwise proper I have had regard to the matters set out in s 117(5) of the Child Support Assessment Act. This includes the cost of the father in respect of his care of the children, the obligation of the mother to maintain N, the parenting orders I have put in place, the departure order I am making, the duty of the parents to maintain these children, the proper needs of these children and the property orders and settlement made consequent upon them. To that end I repeat that which I have referred to earlier in these reasons.
(e)Having regard to the income of the father I determine that the annual rate of child support payable by the father is not to be reduced by reason of the non-periodic order. To that end I am satisfied that in all of the circumstances set out herein that it is both just and equitable and otherwise proper that the annual rate of child support not be so reduced
[29] Affidavit of service of Ms O filed 26 September 2014.
Given the above, I do not intend to extend the change of assessment years beyond October 2015, I will extend it to January 2016, a period of about one year from the date of the orders. After that time it will be a matter for the parties to either negotiate between themselves or be assessed through the Child Support Agency.
Given that relatively short period of time I have determined not to apply any Consumer Price Index adjustment to the amount assessed by me.
Having considered and identified the grounds for departure the order I propose to make is a departure from the child support payable by the father from $616 per week to $840 per week. This is $280 per week per child which is an annual rate for all three children of $44,680.

Non-Periodic Child Support

The mother also sought orders for non-periodic child support The relevant legislation in this area is:-
Section 123 - Application for order under division
123(1) [Application for non-periodic child support] An application may be made to a court having jurisdiction under this Act for:
(a)an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b)an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
123(2) [When application may be made by carer or liable parent] An application under subsection (1):
(a)may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b)may be made by the carer entitled to child support or the liable parent.
123(3) [Pending application] Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.

The mother’s application was made pursuant to s 124 of the Child Support Assessment Act which provides:-
Section 124 Orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support
124(1) [When court may order non-periodic child support] Where:
(a)a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and
(b)the court is satisfied that it would be:
(i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii)otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
Section 125 Court to state relationship between order and assessed child support
125(1) [Statement whether child support to be credited against liable parent’s liability under administrative assessment] If the court makes an order under section 124, the court must state in the order whether the annual rate of child support payable by the liable parent under any relevant administrative assessment is to be reduced, in the manner specified under subsection (3), by the child support ordered to be provided by the liable parent.
I am satisfied that:-
(a)Is an administrative assessment in force and that the application is made by the career entitled to child support. As such the Court has jurisdiction and power to make such orders in the circumstances of this proceeding (s123). The Child Support Registrar has had notice and has not intervened in these proceedings.[30]
(b)Given the evidence before me and highlighted in these reasons that it is just and equitable to make the non-periodic orders and that it is otherwise proper. In terms of this finding I have considered the evidence in the light of the matters to which I am bound to consider as is set out in ss 117(4), (6), (7), (7A) and (8) of the Child Support Assessment Act. In determining what is otherwise proper I have had regard to the matters set out in s 117(5) of the Child Support Assessment Act. This includes the cost of the father in respect of his care of the children, the obligation of the mother to maintain N, the parenting orders I have put in place, the departure order I am making, the duty of the parents to maintain these children, the proper needs of these children and the property orders and settlement made consequent upon them.
(c)Having regard to the income of the father I determine that the annual rate of child support payable by the father was not reduced by reason of the non-periodic order. To that end I am satisfied that in all of the circumstances set out herein that it is both just and equitable and otherwise proper that the annual rate of child support not be so reduced
[30] Affidavit of service of Ms O filed 26 September 2014.
As to the application itself the mother seeks the father pay non-periodic child support as follows:-
(a)The private school fees for the children;
(b)costs incidental to the children’s schooling, including
(i)School uniforms, sports clothes, shoes and sporting equipment;
(ii)School books, stationary and miscellaneous items including computer equipment;
(iii)School levies;
(iv)School excursion expenses including interstate trips;
(v)Fees and expenses associated with all extra-curricular activities which are to be undertaken by the children as agreed between the parties including swimming, music, rowing and horse riding. Such costs and expenses to be paid directly to the school or service provider; and
(vi)All proper medical and dental expenses for the children in excess of which is refundable by Medicare or the private health insurance provider.

In terms of the non- periodic child support the father submitted that there need not be any exercise of jurisdiction on this point as he and mother are in substantial agreement.[31]
[31] Father’s case summary (Child Support) filed 9 October 2014, Exhibit F6.
He is content to pay the non-periodic child support sought by the mother in her Final Amended Response.[32] The father deposed that he agreed to pay school fees and the like.[33] The issues in relation to these expense are:-
(a)the father having input as additional clothes for school trips and the like;
(b)the funding of interstate or overseas school trips;
(c)both parties want to provide the family private health insurance cover;
(d)who pays medical gaps;
(e)input as to the nature and financial contributions to the children’s extra-curricular activities the children;
[32]Mother’s Amended Response filed 29th September 2014, paragraph 1(d).
[33] Father’s affidavit filed 19 August 2014, paragraphs 32 and 33.
As to non-periodic child support, I will be making orders in terms of the areas in which the parties are in agreement, namely private school fees (not including after school care or holiday care initiated by the mother), reasonably required school uniforms (including sports clothes, shoes and equipment reasonably required by the children for activities at or through the school), school books, stationary, plus school levies and school excursions within Tasmania.
The questions of possible interstate and international excursions for the children and any additional clothing are matters for the parties to consider and negotiate as and when they arise. I will not be making orders in that respect. This is because I accept that it is unrealistic to impose orders now for such things as future interstate or overseas school trips for the children they are unlikely for several years.
I am aware that the mother is in receipt of an income Centrelink Benefit, and there is no evidence that this order will not impact upon that pension or vice versa.
In his affidavit sworn 19 August 2014 the father deposed that he has always paid and would agree to pay the expenses set out in the non-periodic child support order. The non-periodic order I propose to make is in terms of that evidence,[34] and as his Counsel conceded in submissions.[35] Given the lack of trust between the parties and the departure orders I have made, I see I am satisfied that a non-periodic order ought to be made.
[34] Affidavit of father filed 19 August 2014, paragraph 32
[35] Father’s child support submissions paragraphs 18 to 23 – Exhibit F6.

The gap between the cost of medical service and health insurance cover

The mother sought an order that the father pays the gap between private medical insurance and medicare and the cost of medical and dental treatment. Given the amount of child support provided in these orders and that the mother is able to return to work and will be able to do so at the beginning of 2015, or the beginning of 2016, I am not satisfied that it would be just and equitable or otherwise proper to make such an order and given the evidence I decline to do so.
As to the gaps between the medical insurance and the moneys expended, they are likely to be very modest in terms of the day to day needs of the children. In those circumstances and given the resources and the available income and child support available to the mother I am not persuaded that such amount ought to be the subject of a non-periodic order. Clearly if there are to be large expenses such as orthodontic and the like it is open for the parties to negotiate and if necessary use the administrative processes at that time. Similarly, with extra-curricular activities, this would be needed to be considered in the light of the activity, its cost and the parties’ respective financial circumstance at that time.

The timing of the non-periodic order

These non-periodic payments will be made in respect of each child until any further orders are made by a court exercising jurisdiction pursuant to the Child Support (Assessment) Act discharging suspending or varying this order, or by way of express variation, discharge or suspension of the order pursuant to an written Child Support Agreement.
Given the above I make the orders as set out at the commencement of these reasons.

I certify that the preceding two hundred and eighty four (284) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 December 2014.

Associate: G Doyle

Date: 8 December 2014