Price & Timms
[2024] FedCFamC2F 88
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Price & Timms [2024] FedCFamC2F 88
File number(s): SYC 3460 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – SUMMARY DISMISSAL – Where the respondent father seeks that the proceedings be dismissed pursuant to the principles enunciated in Rice v Asplund – Where the mother asserts a change of circumstances in the coparenting relationship of the parties and in her financial circumstances – Finding that the relationship between the parties and the mother’s significant change in financial circumstances warrant a material change in circumstances – Father’s application refused.
FAMILY LAW – INTERIM RELOCATION – Where the mother seeks to relocate to Brisbane having regard to her financial circumstances – Where the father opposes such an application – Where it is found that the mother’s need to relocate to Brisbane can be ameliorated by financial assistance provided to her by the father – Where it is further found that a change in residence for the children is likely to adversely impact on their positive relationship with the father – Application refused.
FAMILY LAW – INTERIM PROPERTY – Where the father seeks that any lump sum payment made to the mother should be categorised as an interim property settlement – Where the father also asserts by way of a Balance Sheet filed by him that there is no tangible property between the parties to be divided between the parties – Where the father’s application should fail based on this assertion.
FAMILY LAW – INTERIM SPOUSE MAINTENANCE – Where the mother seeks periodic spousal maintenance to remain living in Sydney – Where the father asserts the mother’s financial circumstances are of her own making – Where the mother has no income – Where the father has financial resources available to him to make a lump sum payment to the mother at first instance followed by period payments – Orders made for the father to pay the mother spouse maintenance in the form of a lump sum followed by periodic payments.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65D(1), 72, 90SE (1)(b), 90SF, 90SF(3), 90SF(4). Cases cited: Bevan & Bevan [1993] FamCA 95
Edwards & Edwards [2006] FamCA 1230
Fewster and Drake [2016] FamCAFC 214;
Goode & Goode [2006] FamCA 1346;
Hall v Hall [2016] HCA 23;
Marsden v Winch [2009] FamCAFC 152;
Mazorski v Albright [2007] FamCA 520;
Morgan & Miles [2007] FamCA 1230;
Poisat & Poisat [2014] FamCAFC 128;
Rice v Asplund (1979) FLC 90 – 725;
Salah & Salah [2016] FamCAFC 100;
Sayer & Radcliffe & Anor [2012] FamCAFC 209;
Searson & Searson [2017] FamCAFC 119;
SPS & PLS [2008] FamCAFC 16;
Strahan & Strahan [2011] FamCAFC 126;
Trewitt & Brock [2021] FedCFamC1A 9.
Division: Division 2 Family Law Number of paragraphs: 109 Date of hearing: 24 January 2024 Place: Sydney Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Ahmad Solicitor for the Respondent: Landerer & Company Solicitors ORDERS
SYC 3460 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PRICE
Applicant
AND: MR TIMMS
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
30 JANUARY 2024
THE COURT ORDERS THAT:
1.By no later than 2:00 pm on 4 February 2024 the father pay to the mother the sum of $20,400 by way of lump sum interim spousal maintenance.
2.Pending further Order, as and from 30 June 2024 the father shall pay spousal maintenance to the mother in the sum of $600 per week with the first such payment to be made no later than 2:00 pm on 30 June 2024 and by 2:00 pm each Sunday thereafter.
3.The father shall pay such sums in accordance with Orders 1 and 2 above into such bank account as nominated by the mother in writing to the father’s solicitor by 4:00pm on 31 January 2024.
4.The mother is to provide to the father by no later than 4:00 pm on the last Friday of each month written notification of her attempts to seek and secure paid employment in the preceding month, with the first such occasion to be Friday 23 February 2024.
5.The: -
(a)Application in a Proceeding filed on 8 May 2023;
(b)Response filed on 14 July 2023;
(c)Application in a Proceeding filed 26 June 2023; the
(d)Response filed 19 January 2024;
(e)Amended Application in a Proceeding filed 7 December 2023; and the
(f)Amended Response filed on 12 January 2024
are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
Final consent orders were made by this court on 31 October 2022 as to the parenting arrangements of the two children of the relationship; X aged 6 years and Y aged 4 (“the final parenting orders”). Such orders were made subsequent to the release of a Child Impact Report dated 22 August 2022. The orders provide for the parties to have equal shared parental responsibility, for the children to live with the mother and spend substantial and significant time with the father. This time is on an increasing graduated basis such that they currently spend time with the father for four nights each fortnight and one half of all school holiday periods. As of term 4 2024 the children’s time with the father will increase to five nights a fortnight; being from Wednesday afternoon to Friday morning in week one and from Friday afternoon to Monday morning in week two.
Six months after the final parenting orders were made the mother filed an application seeking final orders that she be permitted to relocate the children to live with her in Brisbane, that there be an adjustment of property between the parties pursuant to s90SM of the Act and a departure from the administrative assessment of child support payable by the father together with non‑periodic support paid.
By way of her amending interim application the mother seeks that she and the children be permitted to relocate on an interim basis to Brisbane with the current orders as to the children’s time with the father to be varied in the same manner sought on a final basis, such that the time the children spend with the father each alternate weekend will end on a Sunday afternoon with no mid-week time in the alternate week. Thus, the time the children spend with the father will decrease from the four nights a fortnight to two nights a fortnight. Save for on two occasions each school term, such time is to occur in Brisbane. The father is to be responsible for the costs of travel of both himself and the children. It is proposed that the time the children spend with the father during school holiday periods will continue as per the current orders.
In the event the mother is unsuccessful in her application to relocate on an interim basis with the children to Brisbane she seeks that the father pays to her weekly spousal maintenance pursuant to s90SE of the Act. Whilst the amending interim application seeks the payment of $2,412 on a weekly basis, the mother conceded the sum of $1,533 during the hearing.
The father opposes any variation to the final parenting orders and seeks its dismissal in accordance with the principles enunciated in Rice v Asplund (1979) FLC 90 – 725. In the event the mother is not permitted to re-litigate parenting issues or her interim application to relocate with the children is dismissed, the father proposes that he pay to the mother a lump sum of $20,400 by way of interim property settlement.
Neither party sought to vary the current order that the parties have equal shared parental responsibility. Neither party seeks to vary the current regime with respect to the time the children spend with the father should the mother’s application to relocate with the children be unsuccessful.
The matter was listed for hearing by me with priority on 22 January 2024 and was heard on a summary basis.
EVIDENCE
The mother relies upon: -
·The Case Outline document filed 19 January 2024;
·The Amended Application in a Proceeding filed 7 December 2023;
·Her affidavit filed 19 January 2024;
·Her financial statement filed 10 November 2023;
·The Single Expert Report of Mr B dated 31 August 2023; and
·Material tendered throughout the hearing.
The father relies upon: –
·His financial statement filed 12 January 2024;
·His affidavit filed 12 January 2024;
·The affidavit of Mr C filed 18 January 2024; and
·Material tendered throughout the hearing.
On 31 May 2023 orders were made by consent appointing Mr B as the single expert in respect of the parenting issues before the court. The interviews and observations for such report were conducted on 10 July 2023. I have read the Single Expert Report of Mr B dated 31 August 2023[1] and the Costs Notices filed by each of the parties in accordance with the Rules.
[1] Exhibit A.
I indicated to both parties at the commencement of the hearing that if either party wished to rely upon an annexure to an affidavit or tendered document then I would require them to specifically refer to it in submissions. If a document and the portion of it to be read by me was not so identified, then it would not be read.
BACKGROUND
The parties separated on 9 May 2021 following a six-year de-facto relationship.
There are two children of the relationship, X born in 2017 and Y born in 2019.
Annexed to the father’s affidavit are some of the text messages he asserts he received from the mother between August 2019 and April 2022 threatening to take the children and relocate to Brisbane.
The mother deposes that she commenced her relationship with her current partner, Mr D in 2022 but the relationship was not serious until approximately late 2022. Mr D lives in Brisbane.
On 23 May 2022 the mother filed an application seeking both interim and final parenting orders. On an interim basis she sought orders that Y be returned by the father to her care.
On 26 May 2022 interim parenting orders were made by consent for the children to live with the mother and spend each alternate weekend with the father, together with one overnight in the alternate week.
On 8 June 2022 the father filed his Response seeking alternate parenting orders including:
[4] the children will live with each parent in Sydney, Australia during school term periods as set out in the following paragraph.
[6] the children will live with each parent in Sydney, Australia during school holiday periods as set out in the following paragraph.
On 23 August 2022 a Child Impact Report prepared by the single expert, Ms E, psychologist, was released to the parties. In such report she opined that: -
·The principal dispute between the parties was the timing and scheduling of increasing the children’s time with the father.
·Despite this dispute, a “noteworthy feature of this observation is the high level of co‑operation between the parents. Whilst no formal observations between parents and children occurred, informal observation occurred throughout the day…. both parents…were observed to communicate with each other [in] a responsive and respectful manner, respecting each other’s boundaries both physically and emotionally and engaging in a high level of cooperation regarding the children across the day. ”[2]
·The eldest child, X has a predisposition towards anxiety whilst the youngest child “Y” was described by both parties as more “laid-back’ and confident.
·There was a parental dispute as to who the “primary” parent was however both children have a positive relationship with each parent.
·Both parties allege that the other perpetrated family violence. Such allegations if found appear to be consistent with situational couple violence.[3]
·There was low foreseeable risk of mental health, drug or alcohol issues impacting the children.
·It appeared likely that subsequent to the parties’ separation the children had experienced multiple changes that have been unstable or confusing, exposure to overt and covert parental conflict that has “surpassed their developmental capacities to adapt and manage.” The children have been introduced to new adults who are in a significant relationship role with each of their parents and at the end of April 2022 experienced a period of significantly inconsistent and unpredictable care.
[2] Child Impact Report, paragraph 6.
[3] Ibid, paragraph 28.
This report made no mention of a desire by the mother to live with the children in Brisbane.
Final parenting orders were made by consent by a judicial registrar on 31 October 2022, the board terms of which are set out above. In addition, the parties were to do all acts and things to cause X to attend upon a child psychologist/psychiatrist. Such orders do not include any restraints or injunctions as to the children’s place of residence.
At the time of the making of the orders both parties resided in the suburbs of Sydney. The mother was employed by G Company earning a salary of $122,000 per annum. The father paid child support assessed on an income of $243,853 in the 2022 financial year at $357.08 per week in addition to the children’s day care fees of approximately $278 per week and X’s school fees. The mother deposes that she paid rent for the property in which she and the children resided of $750 per week.
On the day the final orders were made by consent the father made application to Services Australia for a reassessment of the child support payable by him to the mother due to a decrease in his income from $243,853 in the 2022 financial year to an estimated income of $52,008. A Child Support Assessment subsequently issued, and the father’s liability became nil.
The mother deposes that on 23 November 2022 she received a message from the father refusing to contribute to the costs of X’s behavioural therapy and advising her that he had spoken to X’s therapist in this regard: “I spoke to [Ms H] before and advised her I am not liable. Les [the father’s lawyer] has confirmed my legal position too. You need to pay ASAP.” [4]
[4] Affidavit of the Mother filed 13 December 2023 paragraph 40.
The mother deposes that in December 2022 the rent payable for the property in which she and the children resided increased to $810 per week.
The mother asserts that subsequent to this time the father refused to pay any additional expenses for the children previously paid for by him unless she agreed that such payments were in lieu of child support. It is uncontested that various exchanges as to financial matters occurred between the parties between November 2022 and February 2023 as annexed to the mother’s affidavit which include the following exchanges: -
·The father: “Why would I work more just so you can have money and not spend it on the kids…
My family and I will contribute what we can to their activists, [sic] schooling and care. All you need to do is say all payments we make are in lieu of child support Pretty simple.”[5]
The father: “I spoke to my lawyer today. I am not legally obligated to pay anything outside of child support. Any additional expenses you would like to add need to be submitted to the courts. That includes medical, daycare or co-curricular activities.”
[5] Mother’s affidavit, annexure B.
Arising from the mother’s request that the father pay the $40 cost for a mandatory schoolbook for X the following exchange took place:
Father: Please send me an email saying it’s in lieu of child support and I can buy it.
Mother: No. [X] misses out again.
Father: Ok.
Mother: This is so terrible that you don’t care and it’s her first day of school
Father: Almost as terrible as you spending money with lawyers to try and take them away from me… Ask your parents for the money. It’s your responsibility as primary carer … Do not contact me again about money
After sending screen shot photographs of her two bank accounts showing savings of $5.95 and $1.00 the father said:
No it’s your responsibility
Mother: … I have no money! I tried but I don’t have any money. They need to eat [Mr Timms].
Father: You’ll need to ask your parents … If you need help paying things, send us the bill and an email saying it’s in lieu of child support… They have the best food and experiences with me. If you can’t provide for them, we will need to discuss with lawyers.[6]
[6] Mother’s Affidavit, Annexure B.
In early 2023 the mother was notified by her employer that her employment would be concluding as at mid-2023. She deposes that during this month her mother offered for herself and the children to reside with her in Brisbane to alleviate the mother’s financial pressures.
On 9 May 2023 the mother commenced these proceedings.
The mother asserts that as a result of the father refusing to take X to a scheduled appointment with her behavioural therapist in mid-2023 when X was spending time with him, she incurred a cancellation fee of $125.
In mid-2023 the mother was made redundant from her employment with G Company and received a redundancy payment of $28,000. The mother asserts this money was applied to expenses for her and the children including household bills, credit card repayments, car insurance arrears, rent and her legal fees in these proceedings. The father asserts that only $16,028.76 was applied to legal costs.
Services Australia records show that from 28 June 2023 to 13 September 2023 the father was paying the sum of $100 per week in child support to the mother.
On 26 June 2023 the mother filed an urgent interim application seeking to relocate with the children to live in Brisbane and interim spousal maintenance orders in the alternative.
On 26 July 2023 interim orders were made by consent and on a “without prejudice and without admissions basis” that broadly:
·Pending this hearing the mother be restrained from relocating the children’s residence from a place 20 kilometres outside of Suburb K;
·The mother use her “best endeavours” to obtain gainful employment in Sydney;
·Pending this hearing the father pay by way of spousal maintenance pursuant to s90SG of the Act a contribution to the mother’s rent on the property she resided in at that time in Suburb K with such contribution to not exceed $810 per week together with the mother’s rental arrears of $200 per week and a further sum of $200 per week into the mother’s nominated bank account.
The mother asserts that as a direct result of the father’s non or late payment of such rent pursuant to the above orders, she received a Notice of Eviction and Termination in late 2023. The mother’s landlord filed an application with the NSW Civil and Administrative Tribunal (“NCAT”) to evict her from her rental property. These documents were sent by the mother to the father. The father does not appear to dispute that such Eviction notice was received but denies that it arose as a result of his noncompliance as set out below.
On 17 September 2023 the father paid the sum of $14,276.97 to the mother by way of child support.[7] It may be that arrears of child support had accumulated since February 2023.
[7] Exhibit M1.
On 20 September 2023 the mother advised the father in correspondence that her landlord had agreed to not pursue the proceedings if all outstanding arrears were paid, and future rent was paid until the end of the tenancy agreement. It does not appear to be in dispute that the father did not agree to make such payments.
Services Australia records show that as of 1 October 2023 the father’s assessed weekly rate of child support assessment is $393.69. It appears that the father did not make any periodic payments at all from this time until a lump sum payment was made on 14 January 2024, shortly prior to the hearing of this matter before me.
In late 2023 orders were made by NCAT that the rental arrears be paid immediately and for the rent to thereafter be paid on a weekly basis. It does not appear to be disputed that the mother’s request for the rent to be paid each week was not agreed to by the father.
In late 2023 the mother’s landlord filed an application with NCAT seeking to relist the proceedings.
In late 2023 the mother commenced a casual role with G Company as an administrative assistant from 9:30 am to 2:30 pm Monday to Friday.
In late 2023 orders were made by NCAT for the mother to be evicted from her rental property. The mother negotiated for such eviction to be extended by about a month.
It does not appear to be disputed that the father was in arrears of $800 in spousal maintenance payments as at 10 November 2023. This sum was paid subsequent to service of the mother’s affidavit upon him of this date.
In late 2023 the father offered to vacate his rental apartment to allow the children and the mother to reside there and he would continue (with the support of his mother and/or partner) to pay the rent for same. This was only until the determination of the current interim application before the court.
In late 2023 the father notified Services Australia that his income from his current employment is $150,000 and a new child support assessment issued in which he is liable to pay weekly support of $393.69 per week. On this same date he made a further offer to the mother to become a co-lessee on a rental property in Suburb F and pay the bond and rental monies for same, again pending only the determination of the threshold issue before the court.[8]
[8] Exhibit F3.
In late 2023 the mother vacated her rental property.
In late 2023 the mother’s temporary contract role with G Company ceased.
From October 2023 to 13 January 2024 there is no record of the father making any child support payments to the mother.[9] As at 12 January 2024 the father was in arrears of payment of child support to the mother to the sum of $6,733.61. The father deposes in his affidavit filed on 12 January 2024 that: “My child support obligations pursuant to the Services Australia payment plan have now been brought up to date.”[10]
[9] Exhibit M1.
[10] Ibid, paragraph 56.
As recorded above, Services Australia records show that on 14 January 2024 the father paid the outstanding child support sum of $6,733.61.[11] Such sum was required to be paid prior to the father being able to leave Australia. The father went on holiday with his current partner for a week in late 2023. The father asserts that this holiday was funded by his current partner, Ms C.
[11] Exhibit M1.
The mother currently receives Centrelink payments of approximately $930 per fortnight. She deposes that she has applied for approximately ten positions but has been unsuccessful and has not been engaged in paid employment since late 2023. She deposes that she has been unsuccessful in obtaining rental accommodation in Sydney. The mother made temporary arrangements for herself and the children to live with her family in Brisbane over the Term 4 2023 school holidays and otherwise with friends in Sydney.
To date the mother has incurred professional costs and disbursements totalling $115,608.53 in respect of the current application before the court. $100,398.43 of these costs have been paid to date. It is recorded that such fees have been met from the mother’s “income, savings, redundancy payout and loans from family members.”[12]
[12] Costs Notice of the Mother filed 22 January 2024.
To date the father has incurred professional costs and disbursements totalling $160,503.35. It is recorded that such fees have been met from the father’s “own resources and/or loans from family members.”[13]
[13] Costs Notice of the Father filed 22 January 2024.
THE LEGAL PRINCIPLES
Whilst the Act recognises that no parenting order can ever be truly immutable, it is well established that the court should only entertain an application to vary an earlier parenting order if it is satisfied that there has been a change in circumstances that is sufficiently significant to warrant doing so. This is often identified by the principle arising from the judgement of the Full Court in Rice v Asplund (1979) FLC 90 – 725; (“Rice v Asplund”) It is a manifestation of the paramountcy principle: Poisat & Poisat [2014] FamCAFC 128. As recorded by the Full Court in Edwards v Edwards (2006) FLC 93 – 306:
The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.
If the mother’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need to vary the orders outweighs the potential detriment to the children of fresh litigation: Marsden v Winch (2009) FamCAFC 152 (“Marsden v Winch.”)
The order sought by the father, namely a dismissal of the application by invoking the principle enunciated in Rice v Asplund is not a parenting order, and thus does not involve a mandatory consideration of the terms of s60CC of the Act. The Full Court in Trewitt & Brock [2021] FedCFamC1A 9, the Full Court observed:
29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
As the parties were not cross examined the threshold issue is to be determined by accepting the mother’s untested evidence at its highest unless such evidence is inherently unreliable: see SPS & PLS (2008) FLC 93 – 363 and Searson & Searson (2017) FLC 90-725 at [11].
Matters involving issues as to relocation, even on an interim basis, are to be determined in the same manner as all parenting matters - by following the legislative framework set out in the Act. They are not a special category of case: Morgan & Miles (2007) 312 FLR 114 at [72]; Sayer & Radcliffe & Anor (2012) 48 Fam LR 298, 311 at [47] and [48]. Thus, whilst this is a significant issue for the court to determine it is not an issue to be considered in isolation. Neither party is required to establish compelling reasons as to why they wish or do not wish to relocate.
The Full Court in Salah & Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCA 1346. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
Pursuant to s 65D (1) of the Act, subject to certain sections, a court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The Full Court in Strahan & Strahan [2011] Fam CAFC 126 revisited the principles effectible to interim or partial property orders, and set out effectively two steps being: -
a.Establishing that S.80(1)(h) is enlivened. The test is not confined to “compelling circumstances”. More is required than the mere fact that upon a final hearing the Mother would receive the property sought. (Marchant) This first step requires the Court to be satisfied that it is in the overarching interests of justice to exercise such power as opposed to the preference of a single exercise of power at a final hearing.
The Full Court has cautioned that: “As a generality, the interests of the parties and the Court are better served by there being one final hearing of s79 proceedings.”[14]
b.The 2nd step requires regard to be had to the “usual matters in a S.79 determination” and therefore some assessment (although not detailed) of section 79 factors.
[14] Harris & Harris (1993) FLC 92-378
As the making of these orders is an imprecise exercise, any discretion ought to be: -
·Conservative so as to ensure the final property outcome is not compromised; and
·That the remaining property is sufficient to meet the legitimate expectation of both parties at the final hearing – a significant matter having regard to any significant disclosure failures; and
·The interim or partial order is capable of being reversed or adjusted if it is subsequently considered necessary to do so.[15]
[15] Medlow & Medlow (2016) FLC 93-692 at 81,090.
Given that the mother is effectively seeking access to her own funds or property of the parties, it is unnecessary for there to be a “detailed enquiry as to the purpose for which the funds are to be used.”[16]
[16] Felice & Felice [2011] FamCA 162 at [12].
The court’s jurisdiction to order spousal maintenance in the context of a de-facto relationship is found in section 90SF of the Act. The case law with respect to spousal maintenance pursuant to section 72 of the Act is for the most part applicable to an application arising from a de-facto relationship.
Whilst not the subject of submissions, I find that the jurisdictional basis exists for maintenance orders to be made between the parties. They have two children together and at all relevant times were both ordinarily resident in New South Wales.
Section 90SF provides that the court may make such order as to maintenance of a party as it considers proper. “It is well settled that ‘proper’ in this context means ‘appropriate to the circumstances.” Fewster and Drake [2016] FamCAFC 214.
The threshold question for the Court is whether the mother is “unable to support herself or himself adequately”, not only by reason of the matters set out in s90SE (1)(b) but also having regard to any relevant matters referred to in section 90SF(3). There can be no liability to pay maintenance unless the need of the mother is first established; Hall v Hall [2016] 257 CLR 490. The onus on establishing need is on the mother.
The threshold test is section is the ability to support oneself, not one’s needs. “Adequate” does not mean bare necessity or survival: Bevan & Bevan (1995). It is a level that is reasonable in all the circumstances. The court must disregard parties’ eligibility to an income tested pension: s 90SF(4).
DISCUSSION AND DETERMINATON
The Summary Application of the Father
The mother asserts that at the time of the making of the current orders the parties enjoyed a high level of co-operation in the parenting of the children as noted by the court child expert. Subsequent to the making of the final orders this co-operation reduced, and the father’s attitudes changed, including negatively and materially impacting the level of financial support she receives. This, in addition to her loss of full-time paid employment, has caused the mother to be evicted from the home in which she and the children resided. She now is without secure accommodation to house herself and the children. She is now without paid employment.
The mother asserts that in those circumstances the orders are no longer practicable; she can no longer afford to obtain reasonable accommodation in close proximity to the father and her only option is to avail herself of the offer of assistance from her parents of rent-free accommodation in their home in Brisbane. She asserts that she cannot, in light of the past conduct of the father, reasonably rely upon him to provide financial support as assessed or pursuant to order in a timely manner to afford her and the children security of housing without having to relitigate the matter in a short period of time.
The father asserts that the issue of the children’s relocation to Brisbane was a live issue prior to the final parenting orders being made. He denies that he does not assist financially with respect to the children’s needs and asserts that he has, since separation:
….paid 100% of day care and/or school fees for the Children, paid all of the medical costs for the Children, paid the majority of all the Children’s extra-curricular activities (including [music] and [language] lessons), paid for all the Children’s excursions, paid for all the Children’s clothing and allowed her to keep $104,000 worth of furniture.[17]
[17] Affidavit of the Father filed 12 January 2024, paragraph 68.
The father further denies that he failed or neglected to pay his contribution towards the mother’s rent on her property and deposes that the Residential Tenancy Agreement provided for the rent to be paid fortnightly and that the issue arose as a result of the landlord’s agent not providing updated rent ledgers and not crediting the rental payments made by him on the actual dates paid on the ledgers. There is no independent evidence to support this assertion by way of bank statements recording such monies being paid.
The father asserts that the mother’s arguments as to a material change in circumstance cannot stand in sync with the relief sought by her in the alternative – that it is implicit by seeking spousal maintenance in the alternative that if the father were to pay spousal maintenance she would be able to remain living in Sydney. I reject this assertion. It is clear from the mother’s evidence and submissions that she advocates quite strongly to be able to relocate with the children to Brisbane as she could not have any confidence, in light of the history and her assertions above, that the father would meet any such financial liability in a timely manner. I accept that the mother seeks spousal maintenance as an asserted required necessity should she be denied the opportunity to re-litigate parenting proceedings or to relocate on an interim basis to Brisbane with the children.
Both parties make numerous complaints as to the other in their affidavit material. The mother alleges that subsequent to the making of the final parenting orders the father:
·Decreased his liability for child support;
·Ceased contributing to the children’s expenses in a manner previously undertaken by him;
·Engaged in financially controlling behaviour as set out above;
·Engaged in conduct designed to minimise his child support obligations;
·Unilaterally removed Y from his pre-school and enrolled him in a preschool attached to X’s school.
The father alleges that the mother: -
·Refuses to take X to the language lessons arranged for and paid by him;
·Unilaterally withdrew Y from his day care; “purportedly on the basis of a day care debt” and so his mother agreed to pay for Y’s continued attendance;
·Constantly missed X’s appointments with her clinical psychologist and so the father, with the assistance of his mother and/or partner, paid the totality of the costs of X’s attendance;
·Is unable to help X self-regulate as a result of her “historical disorders and/or depression”;
·Denigrates the father in front of the children;
·Cuts short his Facetime with the children;
·Has spent or wasted money on gambling, illicit drugs and alcohol instead of spending it on the children.
On consideration of all of the above matters and events as set out in these reasons above collectively and taking the mother’s evidence at its highest, having regard to the apparent change in the relationship between the parties as evidenced by the significant financial issues between them, I am satisfied the mother has established a material change in circumstances sufficient to warrant the court hearing an application to vary the current parenting orders. It is clear from each parties’ evidence that the relationship between the parties is now highly conflictual and combative. Each party makes significant complaints as to the other’s behaviour. I further accept that the mother’s current circumstance of not having secure accommodation for herself and the children, not having the benefit of income from employment and the alleged behaviour of the father that contributed to such circumstance is a further material change.
I attach weight to Mr B’s opinion that the mother’s allegations as to the father’s behaviour constituting emotional and financial control may need to be explored further in the court process.[18]
[18] Single expert report, paragraph 82.
It is of significance that both parties assert that they are financially challenged whilst at the same time spending over $100,000 on the current proceedings. How and why each of them spent such significant sums on legal fees rather than for the provision of secure accommodation for the children and the mother will no doubt be the subject of much cross examination if the matter proceeds to a final hearing. It does neither of the parties any credit.
I am satisfied that the potential detriment to the children of fresh litigation is outweighed by the mother’s asserted need to revisit the parenting arrangements in circumstances where: -
·the parties will be involved in litigation as to the property and child support issues;
·the children have already been involved in the process of obtaining a single expert’s report for these current proceedings; and
·the parties to their credit appear to be able to shield the children from their dispute;[19]
[19] Single expert report, paragraphs 66 and 69.
The current presentation of the conflict within the parenting relationship of the parties tips the balance in favour of the mother being permitted to relitigate parenting matters. The father’s application for summary dismissal of the mother’s application to vary the current final parenting orders is refused.
The Application to Relocate
I now consider such section 60CC factors as are relevant as identified by the parties in this matter.
The mother submits that her desire to relocate with the children arises out of the situation she now finds herself in; no secure accommodation, no employment and a lack of reliable financial support from the father. She submits that the current orders are no longer reasonably practical in the current circumstances. The mother contends that her expenses on a weekly basis will be significantly reduced if she can live with the children in a home owned by her parents in Queensland. The mother concedes that such a relocation will provide her with the opportunity to continue her relationship with her current partner who will also be able to support her in caring for the children.[20]
[20] Affidavit of the mother filed 13 December 2023.
The mother clearly deposes that in the event the children are not permitted to relocate to Brisbane, she will remain living with them in Sydney.
The father submits that the mother’s purported reasons for wishing to relocate are remedied by a partial property settlement.
Whilst untested at this stage Mr B recommends that “ideally” the children continue to live with the mother in Sydney and maintain the weekly spend time arrangements with the father. Should the relocation application be granted, the single expert recommends that the children share daily communication with the father and spend regular in person time with him, as far as practicable.[21]
[21] Single expert report, pages 14 and 15, paragraphs A and B.
The mother submits that her proposal ensures that optimal care is able to be provided for the children by the mother whilst continuing to foster an ongoing relationship with the father. She submits that the father has extended family in Brisbane who will be able to assist in providing accommodation for the children’s time with the father. The father submits that travelling interstate fortnightly to see the children is not within his financial means nor practical given his full time currently Sydney based employment obligations. The children spending time with him in hotel rooms is not optimal and would have a confusing or destabilising effect on the children.
Whilst a meaningful relationship is not measured simply by the amount of time a child is spending with a parent but the quality of the relationship between them, it is clear that in the event the children relocate to Brisbane as sought by the mother the time they spend with the father will of necessity significantly decrease.[22] At this time the children spend four nights a fortnight with the father and see him face to face on a weekly basis. They thus enjoy regular and consistent time with him. Pursuant to the current parenting orders this time will increase to five nights a fortnight. The court child expert noted in the Child Impact Report that;
[X] spontaneously expressed in a sad tone of voice that “I miss mummy when I’m with daddy; and I miss daddy when I’m with mummy.”[23]
[22] Mazorski v Albright [2007] FamCA 520.
[23] Child Impact Report, paragraph 17.
The single expert opines that the mutual allegations made as to family violence during the course of the relationship appear to have been situational rather than premeditated. It was his opinion that there was no indication of either child being impacted by family violence.
The single expert report writer opined that neither of the children appeared to hold any awareness of the nature of the current dispute between the parents and therefore were not in a position to express preferences.[24] I accept that in any event, having regard to the children's ages that the weight to be accorded to any opinions would be minimal.
[24] Single Expert Report, paragraph 66.
The single expert opined that the children display secure attachments with both their parents.
Despite the ongoing dispute, to their credit it appears that both parties have demonstrated the ability of not allowing the children to observe their dispute or engaged in behaviour attempting to “win the children over to their side.[25] It appears that both parties to their credit have been able to remain appropriately child focused in this regard.
[25] Single Expert Report, paragraph 69.
The single expert holds concerns as to the children's ability to cope with such a drastic change as proposed by the mother given the current care arrangements which include weekly overnight time with the father. Whilst the single expert’s opinion is untested, he opines that given the established weekly routines to date and the children's ages and emotional immaturity, “radical change in their circumstances at this stage would probably have a detrimental effect, at least in the short to medium term.”[26] The children would most likely miss the father as well as their familiar environments were they to move interstate. Whilst as this stage of the proceedings untested; the single expert opined that it is conceivable that X may regress and experience former emotional adjustment issues which followed the parental separation, making it difficult for her to settle into a new environment and possibly impact the mother’s parenting, notwithstanding the assistance in Brisbane of her extended family.
If relocation occurred, it would be of utmost importance to maintain, as far as possible, the children's frequent contact with the father and other familiar family members. Yet it is difficult to see how that would occur, apart from online communication.[27]
[26] Ibid, paragraph 71.
[27] Ibid, paragraph 74.
The single expert further opines that the children's young ages and their established arrangements since the parental separation are important factors to consider in the children’s proposed interstate relocation as young children usually do not cope well with sudden change, particularly substantial change to established routines as proposed by the mother.
The mother’s submissions focused on the impractical nature of the current orders for the children to spend significant and substantial time with the father having regard to her current circumstances. I accept the mother’s submissions that it is fundamental to the welfare of the children that she is be able to, as the uncontested resident parent, provide secure and safe accommodation and appropriate financial support to the children. I accept that if the father has behaved in the manner alleged by the mother with respect to his financial responsibilities that she would have little comfort in the father complying with any financial responsibilities moving forward to enable the mother and the children to have security of accommodation. What is of significance however, is the ability and choice of the mother to spend $93,523.43 (not including professional fees rendered but unpaid) to date on legal fees in these current proceedings. These monies could have been applied towards the mother’s costs of secure accommodation for herself and the children. Whilst no findings can be made at this stage of the proceedings as to the alleged conduct of the father, it appears that the mother has chosen to prioritise the payment of legal fees over securing the basic necessities for herself and the children.
Weighing all of the considerations above, I am not satisfied that the children relocating to Brisbane on an interim basis is in their best interests. It will adversely impact on the children’s ability to enjoy substantial and significant time with the father and will possibly have several other consequences, including a regression in X’s emotional wellbeing. I am satisfied that the mother’s understandable concerns as to the security of any orders made for her financial support by the father can be adequately addressed by the appropriate orders as recorded later in these reasons.
Partial Property Settlement
I expressed my concern during the course of the hearing the father’s proposal that he cause to be paid to the mother a lump sum of $20,400 by way of interim property settlement having regard to the father’s assertions as to the value of the property pool as set out in the draft Joint Balance Sheet annexed to the father’s affidavit.[28]
[28] This will be marked as Exhibit F4.
On the father’s assertions, the non-superannuation property pool has a value of -$75,013 and the superannuation property pool is valued at $179,466. In those circumstances I am unable to ascertain how the remaining property as alleged by the father is sufficient to meet the legitimate expectation of both the parties at a final hearing, nor could I be satisfied that the interim order is capable of being reversed or adjusted if it subsequently considered necessary to do so. I refuse in those circumstances to entertain an interim property order.
Interim Spousal Maintenance
The mother seeks interim periodic spousal maintenance in the sum of $1,533. Whilst at the same time offering to pay the mother a lump sum by way of interim property to enable the mother to house herself and the children and therefore remain living in Sydney, the father asserts that “it is not entirely clear” why the mother is unable to support herself adequately – she has had various periods of employment throughout the relationship and following the birth of the children. The father asserts that the mother is not restrained from undertaking full time employment or limited to seeking only remote employment as he is currently meeting the costs of the children’s daycare. This is disputed by the mother. The mother deposes as to numerous applications she has made to obtain paid employment subsequent to the making of the interim orders. The mother’s most recent full-time employment with G Company was a work from home arrangement. The father disputes that mother’s claims that she has made all reasonable efforts to secure employment as she has only sought employment outside her level of experience. I am unable to make a finding in that regard having regard to the nature of a contested interim hearing.
Ignoring the government benefits received by the mother, she has at this time no income. Her expenditure as set out in Part N of her Financial Statement records expenses for herself of $405 per week. The father appears to criticise the mother’s weekly expenses; filing an affidavit by his solicitor with a schedule of monies he asserts the mother has spent on purchasing alcohol for the periods 12 January to 11 April 2023 and 3 June 2022 to 2 June 2023 (and annexing the entire bank statements to support such schedules). I am not satisfied that such records prove such expenses. In any event, I am satisfied that the mother’s alleged expenses for her own maintenance are not unreasonable having regard to the father’s asserted weekly expenses for himself totalling the sum of $1,073.50 more than double that asserted by the mother.
The sum of $405 asserted by the mother as her weekly expenses does not, in circumstances where she does not have accommodation, include weekly rental monies, the monies required to pay a rental bond, nor expenses for cleaning. The parties are in dispute as to the cost of rental properties in the area the children and each of the parties have lived post separation. The mother deposes that rent costs in the vicinity of $780 - $950 per week. The father asserts that a sum of $700 per week is appropriate. No submissions were made by the father as to why the children and the mother would be able to obtain appropriate accommodation for $350 less per week than that paid by the father who deposes as to personally expending the sum of $1,050 per week on rent. I am satisfied in those circumstances that the higher figure as asserted by the mother of $950 per week is reasonable in the circumstances. It was not the subject of dispute that a rental bond of four weeks rent up front would also be required to be paid by the mother.
Thus, I am satisfied that the mother to secure accommodation will require a rental bond of approximately $3,800 and four weeks rent in advance of the same figure; a total of $7,600. On an ongoing weekly basis, I find that the mother’s expenses total $1,355. She does not have an income. I am satisfied and find that she is unable to support herself adequately.
The father presses that any monies to be payable by him be paid as a lump sum. Despite there being no clear source of such funds, he submits that he could “source from wherever” the sum of $20,400. He concedes that he could pay the sum of $600 per week if interim periodic weekly spousal maintenance were to be ordered. The father deposes that his weekly gross income is $2,855 with fixed expenses of $3,870. Such weekly expenditure includes rent of $1,050, loan repayments for two motor vehicles in the sum of $339, credit card payments of $262 per week and child support of $394 per week. There is no evidence as to why the father is paying loan repayments for two motor vehicles. Whilst there is no clear source of capacity from the father’s financial statement, I am satisfied on the case conducted by the father that he has the financial resources available to him to contribute to the maintenance of the mother including her accommodation expenses in Sydney. He gave no evidence particularising with any real specificity the source of his funding or its limitation to a specific value. In any event, having regard to: -
·the lump sum payments made by him to clear his child support arrears;
·his offer to pay a $20,400 lump sum; and
·in the alternative conceding he has a capacity to pay $600 per week.
I am satisfied, using the language of the High Court in Hall v Hall (2016) 257 CLR 490 that the father is capable of “drawing” funds and a reasonable expectation that he will receive them. Thus, in all the circumstances I broadly find that the father does have the capacity to contribute a lump sum and, on that being exhausted, periodic spousal maintenance to the mother.
The payment of the father to the mother of a lump sum of $20,400 plus a rental bond will potentially require the parties to relitigate the question of interim financial support prior to a final hearing with the subsequent legal fees that will arise. Payment of only periodic spousal maintenance will not assist the mother obtain accommodation for herself and the children in a timely manner. I am satisfied in those circumstances that it is proper for the father to pay both a lump sum and periodic spousal maintenance as follows: -
·A rental bond of $3,800 (being four weeks anticipated rent of $950 per week) plus one month’s rent upfront of $3,800 = $7,600 lump sum.
·Weekly spousal maintenance in the sum of $600.
In light of the history to date of the father’s compliance with his financial obligations, I am satisfied to provide the mother with some comfort and financial security that the father pay a lump sum of $20,400. This will include a lump sum of $7,600 and weekly spousal maintenance of $600 per week for 21 weeks. Thereafter the father will be required to pay a weekly sum of $600 to the mother.
It is appropriate that the mother continue to be required to provide the father with her applications for employment on a monthly basis.
In the event the circumstances of either of the parties’ change, or it is asserted that a party is not complying with their obligations pursuant to these orders, they may make such application as they see fit.
Injunctive Orders
The father sought that orders be made restraining the mother from relocating the children’s residence from outside New South Wales. No submissions were made in support of such relief sought.
In circumstances where there is an order that the parties have equal shared parental responsibility, I am refusing the mother’s application to relocate the children’s residence to Brisbane, and there are orders for the children to spend substantial and significant time with the father including mid-week, I am not satisfied that such an injunctive order is necessary.
Orders as set out at the forefront of these reasons will be made for the reasons set out above.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 30 January 2024
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