Raymond and Harold

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYMOND & HAROLD

[2016] FCCA 1617

Catchwords:
FAMILY LAW – Application for child support departure order – in substance mother seeking that father pay child’s private school fees and other expenses – de facto relationship ceasing in 2003 – whether Court has jurisdiction entertain mother’s claims – extent of father’s earning capacity not fully disclosed – application substantially lacking in merit.

Legislation:

Family Law Act 1975

Child Support (Assessment) Act 1989, ss.117, 118, 123, 123A, 124, 125, 141(h)

Applicant:

MS HAROLD

Respondent:

MR RAYMOND

File Number:

MLC 99 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

20 & 23 May 2016

Date of Last Submission:

23 May 2016

Delivered at:

Melbourne

Delivered on:

11 July 2016

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Ambrose

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

ORDERS

That all prior parenting orders in relation to the child X born (omitted) 2002 (“X”) be discharged.
That the mother have sole parental responsibility for X.
That X live with the Mother.
That X spend time and communicate with the Father as agreed between the Father and X.
That the Father at his own expense be at liberty to obtain copies of X’s school reports and school photos.
That the parents keep each other informed of any changes to their contact telephone numbers and email addresses within 14 days of such change.
The mother is authorised and permitted to apply for and receive an Australian passport for the child X born (omitted) 2002 without first obtaining the written consent of the other parent.
The child X born (omitted) 2002 be permitted to depart the Commonwealth of Australia.
There be a departure order pursuant to s.117 of the Child Support (Assessment) Act such that in addition to periodic payments assessed by the Child Support Agency the father pay for half the costs of X’s orthodontic and spinal treatment.

IT IS NOTED that publication of this judgment under the pseudonym Raymond & Harold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 99 of 2012

MS HAROLD

Applicant

And

MR RAYMOND

Respondent

REASONS FOR JUDGMENT

Introductory

This is the latest tranche of litigation between parties who have been litigating for a very long time. The applicant mother seeks orders having the effect of compelling the father to pay school fees for their child X, born (omitted) 2002, at (omitted) College together with orders for orthodontic and spinal treatment. She also seeks passport orders and various ancillary parenting orders.
The father does not oppose the parenting orders sought but strongly opposed what might be described as the child support application. The Independent Children’s Lawyer is largely in agreement with the mother’s position as to the child.
For the reasons that follow, I am going to order the father to pay for X’s braces (the orthodontic work) and I will make the passport orders that the mother seeks and the parenting orders sought by the Independent Children’s Lawyer. I will otherwise dismiss all applications.

Uncontroversial Background

The matters that follow are either agreed or not, in my opinion, seriously contested between the parties.
The father was born on (omitted) 1964. Although he comes from a farming background and has an interest of a sort in the family farm (to which I shall return), he is an (occupation omitted). He is self-employed.
The mother was born on (omitted) 1964 and is not presently in full-time employment although historically she had expertise and experience in the field of (occupation omitted) at which she has been from time to time very successful.
It is quite apparent that the parties have been litigating for a very long time. Orders were made it would seem in the Family Court of Australia as long ago as 2009 before Young J. There are numerous applications on this Court’s file commencing with the father’s contravention application in January 2012. It is not apparent from the materials on this file (so far as I can see) what the duration of the relationship between the parents was. However, the father has asserted and without contradiction that the parties separated in 2003.
According to her Financial Statement filed 22 May 2016, the mother has a weekly income net of $1,610.70 and expenditure of $2,709, although it is clear that that figure includes $440 for rent which has been counted twice. The mother owns a property which she values at $578,445 and in respect of which there is a mortgage of $171,000. She also has a personal loan for a car in the sum of $20,878.
The father refused to file a financial statement (he is self-represented) and this refusal in large part appears to emanate from his position that the Court did not have jurisdiction to entertain the claim. Although not articulated particularly clearly, this objection to jurisdiction arises from the fact that that the parties separated in 2003, at which time this Court did not have of course properly jurisdiction in de facto relationships. He is of course correct in that aspect of his submission.
The father has not seen the child at all frequently for a long time and it is his position that his relationship with his son has been sundered by the machinations of the mother and he accepts that his son will only ever see him again if he decides of his own volition that he wished to do so.

The Parties’ Affidavits

I do not intend to traverse the affidavit material filed, although of course I have had regard to it as in my view the evidence and submissions made at Court fully reveal the parties’ cases. It should be noted that in her affidavit filed 19 May 2016, the mother raises the issue of certain chattels allegedly belongings of X, allegedly retained by the father. That is another subset of the case to which I will return in my description of the evidence actually given.

The Evidence Given and the Submissions Made at Court – The Mother

The mother made an extensive opening. As she is self-represented, it is appropriate to paraphrase it. It should be noted that as with all that follows, what I set out is not purporting to be transcript but rather is taken from my notes. It reflects the aspects of the matters asserted that I regard as of significance.
The mother filed a case outline which relevantly set out her version of the chronology and the orders that she sought. She was seeking sole parental responsibility for X and that he only communicate with his father should he wish to do so. She seeks that the father pay X’s fees at (omitted) College and a number of ancillary orders to which I will return. She also seeks the child support departure orders as I have described them.
The mother has first addressed the question of parenting orders. She said there was no relationship between the father and the child and that the father refuses to engage with her or the child. She seeks passport orders. The parties have been litigating for twelve years and the father had no ability to understand the child’s needs. She said – and this is perhaps noteworthy – that X should continue the lifestyle to which he was entitled. She said financial resources cannot be assessed in the child support assessment process and that the Court had jurisdiction to make the orders as she sought as child support orders. She said she was unable to include in her child support assessments the father’s ownership of rural land and the money that he could have obtained by leasing that land. She referred to defaults in child support payments by the father in the past. She said it had been agreed between the parents that X would be privately educated. She also sought payment for his dental and spinal conditions.
The mother then was sworn in. She had nothing to add to the documents filed in evidence-in-chief.
The father, also self-represented then cross-examined the mother. She was first taxed by the father with conniving to avoid X speaking to the Independent Children’s Lawyer in the days leading up to the case. The mother sought to explain what she said were the various practical difficulties that had obtained. I regret to have to say that her answers were palpably untruthful. The mother was determined not to let X speak to the Independent Children’s Lawyer and made sure that it did not occur.
The mother was also cross-examined about an alleged failure to engage in counselling following the father’s Contravention Application. She denied that this was the case and said that she had taken X to sessions under a mental health plan and said that X was not allowed to go to counselling unless the father agreed which he failed to do.
The mother was cross-examined about the level of child support payable and the father put it to her that the sum he paid of $436 per week was all that was appropriate to be paid. The mother denied this and said that the $436 per week did not cover additional costs and that she could not afford private health cover.
The father put it to her that, contrary to her assertions, none of his family had been privately educated. The mother said that Mr Raymond’s mother had been a boarder at (omitted) and that his sister’s children were at (omitted)’s.
The father cross-examined about the mother’s assertion that the father agreed to pay for all of X’s secondary education. It was put to her that this was untrue. She said that the matter was certainly discussed after separation. The mother said that it was agreed that in return for the mother not interfering in the family farm, the father agreed to paid school fees, which in fact he paid.
The mother was cross-examined about the father’s cessation of payment of X’s school fees and agreed that this took place halfway through the year in 2015. When asked why she had not changed X’s school as a result, she said she had brought the matter to Court as soon as possible and that she thought it was better to leave X at (omitted) College.
The mother said X does not want to see his father and the father was trying to coerce her for more time. She said that when X was in year 4, the issue of where he would go to high school was investigated. X rang the father and so did the mother. X said he had been to see schools and indicated to the father a preference for (omitted) College and asked if the father would pay. X was 10 years old at the time. The mother said that the father confirmed (omitted) College would be the appropriate school and said she did not remember the father saying, “I am not seeing my son.”. This last answer was clearly untrue. I simply do not believe her, having heard and seen her give this evidence.
The mother said she would never agree anything that X did not want. She said the father has a taxable income of over $150,000 and in addition owns property. She said the father had a couple of million dollars he could liquidate. She said she thought the father filed tax returns to cheat her out of income.
The father cross-examined the mother about her capacity to work. She said she did not desire not to work but child care was difficult and costly. This aspect of the evidence was given with conviction and I accept it as far as it goes.
The mother confirmed she would have $370,000 in equity in her property but was unable to comment on the father’s assertion to her that his property in (omitted) was worth $240,000 with a $170,000 mortgage.
The father put it to the mother that he had owned his farmland before he met her. The mother said she did not know what he had. She said that, “you could get income from the land, but do not to avoid child support.” The father put it to her that he was only able to pay school fees as he had done because he was not paying tax or GST and now had a tax debt of $60,000, but the mother was unable to comment as to this. When taken to paragraph 83 of her affidavit about the private education of the respondent’s nephew and niece, the mother said she was aware of this from conversations with Mr Raymond’s mother and sisters.
The mother conceded that there had been regular payments of child support for the last five years but said that they would not continue after this case and that she wanted certainty. When cross-examined about international travel, the mother said she had no intention of living in any other country and does not have dual nationality. She confirmed that her Financial Statement was true and correct.
Counsel for the Independent Children’s Lawyer commenced with the trial before Young J in 2009. The matter went to judgment and ended up with a 5/14 regime of time plus half school holidays. There have been contact orders in place since 2004. The 2009 orders broke down. X did not want to go to the father’s house. His first refusal was in November 2011. X asked the mother to collect him and said he did not want to go back to the father. The GP suggested counselling but the father refused. X said the father was abusing him. The father was yelling at him and locking him in a room. They had seen Ms P, counsellor but the father never worked on any of his issues. His issues are anger management and how he treats people and yelling.
The mother said there was a call to the father in September 2015 when she could hear the father yelling. She was asked by counsel for the Independent Children’s Lawyer why she had X ring the father about schooling if he was afraid. The mother’s answers were unsatisfactory and evasive and clearly untruthful.
The mother said she was not going to force X to talk to his father. He was old enough to make his own decisions. She has requested sole parental responsibility. She does not want to deal with the father. She is concerned not to have to come back to Court. She said it would not be good for X to reconnect with his father. X believes that nothing can be done until the father works through his issues.
The mother was taken to a list of possessions allegedly in the father’s house at page 41 of her affidavit. The list was prepared for an Intervention Order case and the mother said that the dollar figures were put in by the father.
The mother was cross-examined about orders made by Judge Whelan in 2013 that said that time should happen. She said time stopped completely by Christmas 2013. The father had not undertaken the required post-separation parenting course and the regulation 7 counselling never happened because the father did not organise it. She had emailed the father but he had not pursued the matter. There has been no counselling since as the father has not agreed.
The mother was asked whether she would support therapy but she said that the father was never supporting this. The mother was hesitant about it because she was not sure it would benefit the family. It might benefit X. The mother was not opposed to X seeing the school counsellor and would support the inclusion of the father if the counsellor said so.
When asked why she sought sole parental responsibility, the mother said that the father and she could not communicate and that he refuses to communicate with her. The Independent Children’s Lawyer’s counsel put to the mother paragraph 109 of the reasons for judgment of Young J in 2009, which relevantly read:
“The mother, in her affidavit, paragraph 31 has responded to the father’s affidavit and I have read and considered her responses though, to the extent that she comments upon financial issues I leave any assessment of child support to the appropriate Agency. Otherwise, some of the observations in that paragraph are a repetition of earlier evidence of the mother, all self-serving or otherwise did not eventuate at trial.”
The mother did not, in my view, meaningfully engage with the question.
The mother said counselling was not viable for someone who spends no time with the child. There have been Intervention Orders throughout and the mother did not want anything to do with the father.
In re-examination, the mother confirmed that there was no point in counselling.

Submissions and Evidence of the Father

The father said he sought that the application be dismissed and that the Court make such other orders as it saw fit.
In evidence-in-chief, the father simply said that he did not want the mother to know his address and adopted his affidavits.
Under cross-examination by the mother, the father said he did not want the mother to know his address. He said, “You are a very violent person. You have thrown bricks at me.” X had not asked for his address and X was coached. He remembered Ms P, but said that the mother always coached X. He did not recall a report by Ms P in 2012. The report was tendered as exhibit MFI3.
The father was cross-examined by the mother about paragraph 5 of his affidavit, sworn 24 September 2015. He said that, “X swapped us around. I did what his mother did. This was very hurtful”. I should record that these answers were unresponsive to the question put and characterised by self-serving elaborations.
The father was next cross-examined about the phone call made by X to him in December 2013 in which X asked to go to (omitted) College. He said he had agreed to contribute to the costs on the intimation that he would be part of his son’s life. He realised he had been hoodwinked. It was his last chance to connect with his son and it was a complete and utter lie. It was never going to happen.
The father was excited and waited at McDonald’s for half an hour the next day but X did not attend. He never reconnected with his son again. He said that if he had unlimited funds he would pay but he does not have the resources to do so. He managed to pay (omitted) College fees for one and a-half years to a total of approximately $40,000 by not paying GST and tax and now has a $60,000 debt. When he agreed to pay fees, he was not thinking about the fees. He gave one term’s notice of when he would cease paying.
The father tendered exhibits R1 and R2. R2 is a taxation estimate for the financial year ending 30 June 2015 together with annexed documentation. This shows a taxable income of $123,518 and an outstanding tax liability of $8,119. Exhibit R1 is a statement of financial position as at 20 May 2016. This purports to show how a debt of $60,470 in respect of tax, outstanding BAS and a business overdraft is made up. The husband confirmed that he also has to pay his March 2017 BAS in the sum of approximately $14,000. Despite all his difficulties in paying tax which he said was because he had no money, it emerged he had been to (country omitted) for 10 days. He earns $123,000 a year and has a mortgage on (omitted) of $170,000, his property in the (omitted) being worth $240,000.
The father was cross-examined about the family farm. His evidence in this regard was given with a heightened degree of emotion. He said when he left, his brother stayed. It is agreed that his brother farms the family farm. The home block would be his and his mother’s if it was sold. He has never taken rent from the family farm where his family live. If I understand it correctly, his mother still lives in the building on the home block. He said he would never sell it under any circumstances. He had it long before the parties met. The father was cross-examined about a hearing of the Court on 1 February 2016 and said he did not know it was going to occur.
Increasingly, my notes become harder to follow because the interaction between the mother and father became more that of a domestic dispute than evidence given. There was disputation about the return to X of X’s possessions. The father had contact with X by text every Christmas and birthday. On one occasion, X had rung and left a message and said, “hey, Mr Raymond”, which the father characterised as disrespectful.

He did not think that the formal letter he had sent to X about his possessions would have upset him. He has given away all X’s toys and was not prepared to give other items back to the mother because she would sell them. Although he knew where one item was, it was not X’s possession. He said, “the stuff I buy for our house, he’s not coming to my house.” He had no idea where the rocking horse is. He said he had not told X about school fees and that the mother had more assets than he did. He was unable to draw upon his assets.
He said past child support proceedings involved other debts. He pays $436 per week in support. He said the mother ended contact when X was nine and had not complied with Court orders. He said, “The only way I will see X is if he wants to see me. I have moved on. I have a good life.”
The father said he would not stand in the way of X going to (omitted) College but would not pay. He told the mother to pay the orthodontics costs as she is spending $13,000 a year on entertainment. He confirmed that his taxable income is $123,000. His only concern was if the child moved away when he was 16. He said the mother never abides by Court orders and counselling would be pointless.
As I have indicated, the exchanges between the parties had descended to mutual recriminations and I ceased cross-examination accordingly.
Under cross-examination by counsel for the Independent Children’s Lawyer, the father confirmed that he had undergone counselling with somebody called Ms S in (omitted) and with a specialist. He wanted to see if X was aware at the age of nine what was going on. He had counselling with Ms P only once but it was productive. He said that he had realised that it was near impossible to have contact with his son and that orders for counselling would cause X distress and lead to more counselling of itself. He did not wish to pay for counselling as the mother would control the process.
In conclusion, the father said that he has no superannuation. He is 52 years old and has no assets.

The Submissions Made by the Parties – Independent Children’s Lawyer

The Independent Children’s Lawyer supported the position of the mother. Although counsel made the submission with a very understandable lack of enthusiasm, he conceded that an order for sole parental responsibility was necessary as the father conceded that this was so. It is not necessary to record the detailed submissions made about the particular orders made. I will deal with those matters when I come to the mother’s proposal.

The Submissions of the Father

The father submitted that all matters raised should be dealt with through the Child Support Agency. He questioned whether the Court had jurisdiction to entertain the application and submitted that even if it did the outcome proposed by the mother was not just and equitable. The father supported the Independent Children’s Lawyer’s proposal as to time, which is that X spend time and communicate with the father as agreed between the father and X. The father said he did not have extra money to give. He had no objection to (omitted) College but was just simply not able to pay. He said, “I can’t give money I don’t have.”

The Submissions of the Mother

The mother confirmed that she seeks the orders set out in document MFI1. She expressed concerns about the child’s safety if he were to be with the father. She said every time an Intervention Order was made, it is belittled by the Family Court. She pressed for passport orders to be made. She said she would like X’s education to be secured. There were multiple grounds for a departure order. It was intended that X go to (omitted) College, a matter agreed by both parents. The mother referred to s.7A of the Child Support Assessment Act and said that the Agency had told her to take the matter to Court. She sought a retrospective assessment.

Some Observations about the Credit of the Witnesses

It is always distressing to have to make observations about parties or witnesses in a judgment that may be off-putting or unpleasant for them to have to read. At this stage of the matter, they can no longer protect themselves; they are simply subject to the Court’s views. Nonetheless, and given the nature of the case, in this instance it is not possible to avoid trenchant criticism of both the primary witnesses.
The mother was, I regret to say, an utterly unimpressive witness. I have already made observations about her in part as I have traversed her evidence. Her answers were often self-serving and non-responsive to the questions put. It should be noted that although self-represented, neither the mother nor the father appeared in any way to be overawed by their presence in the Court or the experience of conducting litigation for themselves. They both presented as confident.
The mother impressed me as difficult and untruthful almost from the time she opened her mouth and I regret to say that that impression was, subject to some exceptions I have noted, only confirmed by her demeanour during the rest of her evidence. Her answers were often extremely self-serving and her personality, as I have construed it, particularly, for example, in relation to things like X seeing the Independent Children’s Lawyer, suggests that she is controlling and manipulative. Her evidence about X and her desire for sole parental responsibility were all concerned with herself and utterly un-child focused. She blames the father at every opportunity for everything.
Most unfortunately, the father was no better. He impressed me as being mean-spirited and insightless and a number of his answers were unresponsive and contained, as I have earlier indicated, self-serving elaborations. He was entirely blaming of the mother at every opportunity and his answers at times struck me as being every bit as untruthful as hers. His assertion that X saying to him, “hey, Mr Raymond,” was disrespectful perhaps speaks volumes about the measure of his insight. His answers about X’s possessions were spiteful and self-centred. He covered himself in no more glory than the mother.

Findings about the Relevant Facts

The parties separated in 2003. It appears they have been litigating for most of the time since then. Their bitterness about one another is palpable. Their interpersonal relationship is toxic, even in the Court.
There has been a long history, as I am satisfied, of the mother preventing a relationship between X and his father. The father has ultimately just given up. This is a very sad state of affairs. His bitterness, while understandable, extends even, as it would seem, to disposing by way of sale of some of X’s toys rather than returning them to him. This pitiful lack of generosity does him no credit whatever.
Relevantly for these purposes, the mother caused X to ring the father in 2013 to ask if he could go to (omitted) College. The mother obviously did this with a view of trying to persuade the father to pay school fees. The father says that he thought he was being offered a chance to re-engage with his son and that he seized this, accordingly paying little attention to the interrelated demand that he pay school fees. I accept his account that he was promised a visit by X the following day which did not occur. This must indeed have been hurtful to him in the circumstances. Although it is a significant finding to make, I have no doubt having seen the mother give her evidence, that she wittingly sought to use X to help persuade/coerce the father to pay school fees.
Both parties had much to say as to whether or not it was actually ever agreed that X would always go to (omitted) College. In the end, the position is somewhere, in my view, between the parties’ assertions. It was never agreed in the past that X would go to (omitted) College. The mother herself said that a number of schools were considered. This would not have been necessary if (omitted) College had always been the school identified.
Similarly, however, the father’s assertion that he agreed almost unwittingly to pay school fees is not made out by his course of conduct. He paid a year and a half’s worth of fees before he stopped. He says he realised he had been hoodwinked and would not see his son but he paid the fees anyway.
What I think has happened is that the father paid school fees and did so by not paying his tax and BAS as time went by. This has led to a significant debt of some $45,000 (the $60,000 he asserts less his overdraft). He is correct to say, on the evidence as it stands, that he cannot afford to pay school fees as the net result of his doing so is that he is $45,000 in debt. This equates quite closely to the $40,000 he actually paid. What happened, as I find, is that eventually the combination of financial pressure that the payment of school fees on the one hand, taken together with the additional bitterness he feels at his estrangement from his son, simply caused the father to stop paying.
I accept the father’s evidence that it is not the case that all his family went to private school but it is clear that some family members in his extended family have. This is not, however, in my view, a matter of any importance.
In the end, it comes down to what I make of the father’s assertions about his capacity to pay. The father says he has a salary of $123,000. He has not filed a Financial Statement. It is not therefore possible to do a detailed breakdown of his income and expenditure and I notice that he has been on a holiday to (country omitted) of relatively recent times. Nonetheless, the fact is that his evidence, doing the best I can with what I have, is that he has accrued enforceable taxation obligations of not less than $45,000, in addition to which he has an ongoing current liability of some $14,000, at a time roughly commensurate with the period during which he paid school fees.
Although I have been critical of the father’s veracity, his complaints about his financial position struck me as being sincere. I cannot state to what extent his lifestyle may be extravagant and I take that into proper account because he has refused himself to file a Financial Statement. Nonetheless, doing the best I can in something of an evidentiary wasteland, I find that the father cannot pay the sum of well in excess of $20,000 a year necessary to support X at (omitted) College.
Further, I find that the father has a property worth $240,000 encumbered by a $170,000 mortgage in the (omitted). He also has some sort of a share in the family farm.
It should be noted that it is common cause that the father’s share of the family farm long predates his relationship with the mother. Even on the limited information available, he does not have any kind of realisable interest in it. Whatever the position as to registration on title may be concerned, it is clear from the evidence that the father gave, which I accept about this aspect of the matter, that the family farm is held pursuant to some form of constructive trust. The sibling who works the farm would plainly have strong claims, even on the limited information the father made available, in the event that the father would endeavour to realise whatever share he may have of the property at law.
Furthermore, the father is right to be critical of the endeavour of the mother to get around the jurisdictional barrier that would have existed when the parties separated in 2003. The mother says that it was agreed that he would pay school fees as an offset for claims against the family farm. The reality is, however, that in 2003, this Court had no jurisdiction in relation to de facto property matters. The mother would have had to have issued Part 9 proceedings in the Victorian Courts. Such a claim would unquestionably, on any view of the matter, have faced difficulties.
I note from the judgment of Young J that it appears that the parties were together for some three years between 1999 and 2002, and that following a period of re-cohabitation, they finally separated in 2003. The mother’s chances of success in any Part 9 litigation would have been likely to be very debatable and I roundly reject the mother’s suggestion that there was any kind of agreement, or even representation, that it was agreed after separation that the father would pay school fees in exchange for the mother not making a claim on the family farm.
The mother’s endeavour now to seek to include the family farm in the pool of assets by the side door mechanism of a child support application is, in my view, devoid of merit and should be completely and roundly rejected.
It should be noted that the mother has a by no means unsizeable net income in excess of $80,000 a year and also has very substantial equity in a property that she owns. It is far greater than that of the husband.

The Particular Claims Made

The mother’s primary claims are for child support to be adjusted so that the father pays a substantial lump sum to cover X’s school fees, together with his orthodontic expenditure and costs in relation to a spinal condition. This brings us to the Child Support (Assessment) Act 1989.
Section 117 of the Act relevantly reads:
“(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of a case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the parent entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.”
Grounds for a departure order are set out in s.117(2). The grounds relied upon by the mother are s.117(2)(b)(ii) and s.117(2)(c)(ib) which are:
“s.117(2)(b)(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
s.117(2)(c)(ib) “because of the earning capacity of either parent.”
The mother also refers to ss.118(1)(a)(c)(d)(f)(g)(j) and (2). It is not necessary to set these out as they are purely mechanical.
The mother refers to s.123 (applications for non-periodic child support) and s.123A (lump sum). She also refers to ss.124 and 125, to which I of course have regard although it will not be necessary to deal with them seriatim. Finally, the mother refers to s.141(h) of the Act seeking retrospective operation of orders.
Insofar as the application seeks a payment on the grounds set out in s.117(2)(b)(ii) (educated in the manner expected by his or her parents) I have probably indicated my views sufficiently already. It was, in my view, not agreed between the parents at any early stage in X’s life that he would be educated at (omitted) College. The father agreed for a year and a half in 2013 onwards. While he was initially no doubt attracted by the thought that this might gain him some contact with his son, it must have been very obvious to him from an early point that this was not going to occur.
Whatever measure of agreement he has exhibited, it does not give rise to the sort of expectation that the wording in s.117(2)(b)(ii) indicates. This is not the fruition of a long-held and agreed understanding. While this is certainly what the mother expects and may have expected it is not what the father expects or expected.
Insofar as the application is pressed on the basis of the father’s earning capacity once again I have also dealt with this matter. He does not have it as I find. I repeat that it has not been possible to conduct a detailed analysis of the father’s income and expenditure because he has not filed a Financial Statement. Nonetheless, and even bearing in mind that both parties were self-represented, no application was made before me for the father to be compelled to provide a Financial Statement and I note that these parties are after all despite their lack of their legal qualification very experienced litigants.
I repeat, the father went into debt by the amount of school fees he was paying and that much at least is known. While he has apparently had an overseas holiday, I accept his “cri de coeur” at the end of the case to the effect that he is 52 with no superannuation and the only asset he has is a relatively modest equity in his home in (omitted). It is conceivable that in some unforeseen way he may realise something on the sale of the family farm but for the reasons I have indicated I think that is far less probable than otherwise. He does not have the capacity to pay X’s school fees at (omitted) College.
This being the case I am not satisfied that one or more of the grounds for departure mentioned in subsection 117(2) exists. Nor am I satisfied that it would otherwise be just and equitable as regards the liable parent to make him pay, essentially for the reasons I have already indicated. Furthermore, this endeavour in a back door way to revisit the issue of the family farm is, as I say, very unattractive.
In all the circumstances, this is not only not just and equitable but it would not otherwise be proper to make an order in the mother’s favour as she seeks.
In the end, if the mother seeks to send X to (omitted) College, she will have to realise her own property and pay the fees herself. The fact is that decisions about private education are decisions upon which minds can differ. The reality is that while both parents in principle regard it as desirable for X to go to (omitted) College and doubtless he would be distressed if he does not continue there, there is no question that there would be competent education available through the state schooling system. I further note that the mother has more than sufficient equity in the property that she owns to either realise the same and pay the fees or alternatively to borrow against it and achieve the result in that way.
The matters that give rise to this conclusion, however, do not operate in the same way in relation to X’s orthodontic and spinal treatment. The amounts involved are modest by comparison. In my view, without setting matters out seriatim, putting the matter shortly the father has more than sufficient funds to enable him to contribute to these costs. While secondary schooling is essentially a discretionary issue, X’s orthodontic and spinal treatment is a necessity.
It is not necessary to repeat the references to the statute already traversed above. In all the circumstances, it seems to me just and equitable and otherwise proper that the father be required in view of his financial capacities and his income generally, to pay half the costs of the orthodontic and spinal treatment. It is not appropriate to make a lump sum order in circumstances where the ultimate cost is not known with certainty and, more particularly, the father is substantially in debt.
So far as travel is concerned there is no earthly reason why the mother should not be able to take X overseas or indeed for X to go overseas himself in school outings or the like. In circumstances where the cooperation between the parents is poor I will make the usual passport orders.

Children Parenting Issues

In the face of the positions of the parties, it is as obvious as it is unfortunate that there should be an order for sole parental responsibility.
Turning to the mother’s proposed orders I would indicate that consistent with the position of the Independent Children’s Lawyer I will discharge all earlier parenting orders and order sole parental responsibility for the mother and that X live with her. Time between the father and X will be as the Independent Children’s Lawyer has proposed, namely, X spend time and communicate with the father as agreed between the father and X.
I am not making an order that X continue his education at (omitted) College but will order that the father is at liberty to obtain copies of school reports and school photos at his own expense, if any. I will not as the Independent Children’s Lawyer urges restrain the father from attending X’s school activities nor will I give further force to an Intervention Order apparently already made in the Moorabbin Justice Centre on 1 February 2016.

First, there is no evidence that the father will in any way be likely to attend any school activities. His evidence which I accept is that he has given up on seeing his son. Second, the Intervention Order stands according to its own terms. I will not order the father to pay $100 per month directly into X’s bank account to use on a mobile phone account. There is no suggestion he calls his father in any event.
I will make orders that the parties keep each other informed of any changes to their contact telephone numbers and email addresses. There will be orders to give effect to the child support conclusion at which I have arrived.

Conclusion

This has, I regret to say, been a distasteful case to hear. I have formed a regrettably poor impression of both of the parents. The evidentiary position put by the parties reflects their self-representation and has at times been significantly incomplete. I should emphasise that I have done the best I can with the materials that are before the Court.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 11 July 2016

[2016] FCCA 1617

11 July 2016

Key Legal Topics

Areas of Law

Family Law