FAMILY COURT OF AUSTRALIA
| SATHRA & SATHRA (NO. 2) | [2012] FamCA 935 |
| FAMILY LAW – CHILDREN – where the mother alleges the father has been violent and aggressive towards her and the children – where the father asserts the children have been coached by the mother and maternal family – whether the eldest child should be allowed to choose if she spends time with the father - whether the younger child should spend time with the father without her elder sibling - where both parties have filed a significant number of contravention applications and applications in a case – where the parties consented to an order restraining them from instituting proceedings relating to the children without leave. FAMILY LAW – CHILD SUPPORT – whether child support orders which were made in the context of a final property arrangement between the parties should be varied – where the mother agreed the father should be given credit against child support arrears for costs orders in his favour. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Marsden & Winch [2012] FamCA 557 In the Marriage of Bryant (1996) FLC 92-690 |
| APPLICANT: | Mr Sathra |
| RESPONDENT: | Ms Sathra |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Adamson |
| FILE NUMBER: | SYF | 5076 | of | 2003 |
| DATE DELIVERED: | 2 November 2012 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 4 - 6 June 2012; 8 June 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Reynolds |
| SOLICITOR FOR THE APPLICANT: | Brian Samuels & Associates |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Barnett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adamson Solicitors |
Orders
Parenting
All previous parenting orders are discharged.
Except as provided in order 28, the Respondent mother is to have sole parental responsibility for the children of the marriage M Sathra born … January 1998 (“M”) and L Sathra born … March 2000 (“L”) (“the children”), including the ability to travel with them overseas.
The mother give notice to the father in writing or by email of any major decision she intends to make about the children’s education or medical care, or major decision relevant to their long term care, welfare or development at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
Each parent shall have the responsibility for making day to day decisions in relation to the care, welfare and development of the children while the children are in the care of that parent.
The children shall live with the mother.
The parties may at any time either generally or in respect of a specific occasion, vary these orders by both agreeing in writing to do so provided that the children shall not spend time with their father or communicate with the father after the end of the third term school holidays in 2013, in a way that is inconsistent with order 14.
The father is to spend time with the children together between the date of these Orders and until the end of the third school term 2013 in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the first weekend of the month. Should that weekend be a long weekend because the Friday is a pupil free day or a public holiday, the children’s time with the father shall commence on the Thursday evening at 6:00pm. If the weekend is a long weekend because the Monday is a pupil free day or a public holiday the children’s time with the father shall end at 5:30pm on the Monday.
In addition to the time in Sydney pursuant to order 7 and until the end of the third school term 2013, the father is to spend time with the children together in Newcastle no more frequently than one weekend in any one month, for a period no longer than from Friday after school until Sunday at 4:00pm, if the following requirements are met:
8.1.The father gives the mother 14 days notice in writing to her email address in the following form:
“I am available to have the children from insert time on insert date to insert time on insert date (if applicable). I shall be staying overnight at insert address.”
8.2.The mother is to give notice in writing to the father at least 7 days before the time nominated in the notice referred to in order 8.1 of all extra curricular activities and any social activities which the children are to be involved in during their time with the father.
8.3.The father ensures that the children attend all extra-curricular activities and any social activities referred to in the notice given pursuant to 8.2.
8.4.If overnight time is to occur, the father shall have appropriate accommodation including separate beds for himself and each child.
8.5.It is noted that the father can rely upon this order to ensure that the children spend time with him on Father’s Day and this order is subject to the proviso that it will not be used to prevent the children from spending Mother’s Day with their mother.
Until the school holidays at the end of the third school term 2013, the father is to spend time with the children together as agreed, or in the event of no agreement at the following times:
9.1.Subject to order 12, for one week in the school holidays at the end of Terms 1, 2 and 3 and in the event of no agreement the father shall commence to spend time with the children from 11.00am on the day after school term concludes until 5:30pm seven days later.
9.2.During Christmas school holidays 2012/2013 the father shall commence to spend time on the first day of the school holidays (being the day after school term concludes) at 11:00am and ending at 5:30pm 21 days later.
In order to facilitate the time the children spend with the father in order 7 above:
10.1.The mother shall ensure that the children are placed on public transport between Town E and Suburb P as near as possible to 5:30pm prior to the commencement of the father’s time with the children, and the father shall ensure the children are placed on public transport from Suburb P to Town E as near as possible to 5:30pm at the end of his time with the children.
10.2.In the event that the children fail to board the public transport, as ordered in order 10.1, the parent with whom the children are, shall immediately notify the other parent.
10.3.In the event that the public transport service is not in operation, as ordered in 10.1, changeover shall occur at McDonalds Restaurant at Town G as soon as practicable.
To facilitate order 8, the father shall collect the children from their school(s), and return the children to McDonalds Restaurant at B at completion.
During the school holiday between terms 2 and 3 2013 and upon the father giving 3 months written notice, in the event that the father wishes to travel overseas with the children together, the children shall spend 16 days with the father as agreed, in the event of no agreement the father shall commence to spend time with the children on the day after school term concludes at 11.00am until 5:30pm 16 days later, subject to the following conditions:
12.1.The country in which the children will spend time has an advisory by the Australian Department of Foreign Affairs and Training no more serious than ‘exercise a high degree of caution’ and that such a country is a signatory to the Hague Convention.
12.2.The father provides the mother with an itinerary, including details of flights and transportation, addresses of accommodation and telephone numbers on which the children can be contacted on, at least 21 days prior to departure via email.
12.3.The father shall notify the mother of any change in the itinerary as soon as practicable.
12.4.The father shall facilitate a phone call between the children and the mother at the minimum of one phone call every five days while the children are in his care overseas.
Until the end of third school term holidays in 2013 the father may telephone the children on two occasions a week at a time which is mutually agreed but failing agreement, on Monday and Thursday evenings at a time convenient to the children and failing agreement, 7.30pm.
After the end of the third school term holidays in 2013:
14.1.Child M not spend time with her father or communicate with her father unless M expresses the view that she wants to do so and then that will happen on the terms of M’s choosing;
14.2.Child L not go to her father to spend time with him unless M goes with her provided that this condition not apply if both parties agree that L has expressed the view that she wishes to see her father without M being present;
14.3.In the event that M (and consequently L) see their father as a result of a view by M that she wishes to do so, the parties are to attempt to agree on the arrangements to do so and failing agreement the provisions of orders 7 – 11 shall operate unless M chooses otherwise;
14.4.The father may telephone L on two occasions a week at a time which is mutually agreed and failing agreement, on a Monday and Thursday evening at a time convenient to L and failing agreement at 7.30pm.
The mother shall not initiate contact with the children on their mobile phones while the children spend time with the father, except in cases of emergency. In the event that a child calls their mother while spending time with the father, the mother shall ensure that the telephone conversation with that child last no more than 15 minutes.
The father may attend all school, significant medical appointments (not ordinary attendances upon a general practitioner) and extra-curricular activities to which parents normally attend.
The father may attend upon a counsellor with the children during the times the children spend time with the father. If he intends to do so he shall notify the mother of that counsellor’s contact details and shall provide authority for the mother to discuss the content of those sessions with the counsellor if the counsellor deems it appropriate.
Both the mother and father, at the father’s expense, shall do all things necessary in order to facilitate the children becoming American citizens and gaining and keeping current, American passports, subject to the following conditions:
18.1.Once the American passports are obtained for the children, the American passports shall be held in the Family Court of Australia, Sydney Registry until each child reaches the age of 18 years.
18.2.If applicable, the American passports will record the children’s Australian address.
18.3.The mother will be at liberty to inform the American Consulate that the American passports are to be held pursuant to this order in the Family Court of Australia, Sydney Registry, until each child reaches the age of 18 years.
The mother and the father shall do all things necessary in order to facilitate the children obtaining new Australian passports.
Once new Australian passports are obtained for the children, the Australian passports shall be held in the Family Court of Australia, Sydney Registry until each child turns 18 years of age except when each parent provides a written authority to the Registry Manager seeking their Australian passports to be released for the purpose of overseas travel in compliance with these orders. If the conditions of order 12 have been complied with, then the mother shall not unreasonably withhold written consent. Either party may apply to the court on short notice for release of the passports if consent is withheld by the other parent. The passports are to be returned to the Family Court of Australia Sydney Registry as soon as practicable (but no later than 7 days after the children have returned from overseas).
The mother must forward as soon as practicable to the father by email or ordinary post copies of:
21.1.All school reports.
21.2.Medical reports relating to the children.
21.3.Any major information regarding the children’s achievements in sporting or other activities.
21.4.Copies of all communications from the school or any other organisation with which the children are involved which relate to either child or relate to any event in which either child will be involved or at which a child will be present.
21.5.Copies of any diaries of future events produced by the children’s schools or any organisation with which the children are involved.
and the father is not to communicate with the mother in relation to this information.
Each party shall do all things and execute all documents to ensure that any school or other education provider is authorised to provide any information concerning enrolment, process, education and welfare of the children to the other party or any other information as requested by the other party.
Communication between the parents must pertain only to aspects relating to the care of the children and cannot be abusive or denigrating of the other parent and as far as possible the parents should not use foul language.
Neither parent is to denigrate or criticise the other parent or any member of the other parent’s family in the presence or hearing of the children, nor permit a third person to do so in the children’s presence.
The father is restrained from using physical force with the children or as far as possible using abusive or foul language towards the children or in the children’s presence.
The parents are restrained from discussing these proceedings with the children or showing any documents that pertain to these proceedings with the children.
The mother shall within seven days of receipt of these Orders provide copies to the schools that the children may attend.
The parents shall ensure, as far as possible, that the children are referred to by the surname Sathra at all times.
Each parent shall keep the other informed of their current residential address, email address and telephone number, and shall inform the other parent within 7 days of any change.
The children shall be permitted to bring their own mobile telephone to the father’s residence and the father shall not remove the telephone from them as a method of discipline and he shall not access the children’s telephone.
The mother be prevented from lodging or causing the lodgement of any Postal Redirections from any of the father’s addresses (including home, Post Office boxes and work).
The mother regularly and advise the father of all medical appointments with respect to the children by giving in writing by email, the time, place, name, address and specific medical reason for appointment for the relevant consultation and a brief summary of the result of the consultation. Those advices are to be provided to the father in sufficient time for him to be able to attend appointments if he chooses to do so (pursuant to order 16). In the event of emergency, whereby the father needs to take one of the children to the doctor, the father is to advise the mother forthwith of any medical appointment with respect to the children by SMS advising her of the time, place, name, address and specific medical reason for appointment.
Until the 15th birthday of each child:
33.1.Each party shall forthwith authorise the other to obtain access to the records of any health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists.
33.2.Each party shall forthwith authorise all health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists to make available any and all of the children’s records upon request by the other party.
The father be restrained from introducing the children to any new partner until the father’s relationship with that person has existed for a period of 6 months
The Independent Children's Lawyer shall explain the Orders made by the Court to the children.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Except for any appeal against these orders, the father and mother are both restrained for a period of five (5) years from the date of these orders from instituting any proceedings in any jurisdiction within the Commonwealth of Australia for any variation of orders 1 to 33 or enforcement of those orders, without first obtaining the permission of a Judge of the Sydney Registry of the Family Court of Australia.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Financial matters
The father’s application to discharge orders 3, 4, 5 and 6 dated 19 September 2006 and to expunge arrears of child support be dismissed.
The amount of child support arrears payable by the father to the mother currently outstanding under orders 3 and 4 made 19 September 2006 be reduced by the sum of $9,589.30.
The costs orders in the father’s favour against the mother dated 12 August 2008 ($13,515.80) and 11 November 2009 ($9,246) be discharged.
The father continue to pay by way of child support, the sum which he was required to pay pursuant to orders 3 and 4 made 19 September 2006 and those sums be paid in a manner nominated in writing by the mother.
The property situated at and known as O Street and N Road be charged with the father’s arrears in respect of child support and pursuant to that charge, the mother may lodge a caveat on both of those properties until the father pays the arrears.
In the event the father has not paid the arrears within 3 months from the date of these orders, the mother or the Child Support Agency (whichever is applicable) may make application for an order for sale by way of enforcement.
The father pay one half of the costs of the children’s private schooling tuition fees, textbooks and all fees (if applicable) for literacy and maths groups for each of the children.
The mother’s application in relation to the father’s payment of fees to X School be dismissed and the mother’s applications relating to financial matters are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sathra & Sathra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 5076 of 2003
| Mr Sathra |
Applicant
And
| Ms Sathra |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties in this matter have been involved in lengthy and highly conflictive litigation. It is in the best interests of the children that it stops.
APPLICATIONS
The orders sought by the Independent Children's Lawyer at the commencement of submissions are set out in Schedule 1. The parties agreed to the majority of these orders. The father’s proposed alterations to the Independent Children's Lawyer’s proposal and the balance of orders sought by him are set out in Schedule 2. The mother’s proposed alterations to the Independent Children's Lawyer’s proposal and the balance of orders sought by her are set out in Schedule 3. An analysis of these schedules will indicate that a number of orders proposed by the Independent Children's Lawyer are not contentious and shall be made by me. These reasons deal with those orders that have been sought by the Independent Children's Lawyer, the mother or the father in respect of which there is no agreement.
DOCUMENTS RELIED UPON
The applicant father relies on the following:
3.1.Amended Initiating Application filed 26 April 2012
3.2.Affidavit of the father sworn 23 April 2012
3.3.Financial Statement sworn 2 May 2012
The respondent mother relies on the following:
4.1.Response to Initiating Application filed 23 May 2012
4.2.Application in a Case filed 12 October 2011
4.3.Application in a Case filed 31 August 2011
4.4.Application in a Case filed 4 May 2011
4.5.Affidavit of the mother sworn 21 May 2012
4.6.Affidavit of the mother sworn 20 May 2012 (annexing affidavits sworn 12 October 2011, 11 August 2011, 30 August 2010, 28 April 2010, 20 October 2009, and Application in a Case filed 11 August 2011)
4.7.Affidavit of the mother sworn 11 December 2011
4.8.Financial Statement filed 23 May 2012
4.9.Notice of Child Abuse filed 30 August 2010
4.10.Notice of Child Abuse filed 11 August 2011
4.11.Judgment of Cohen J dated 7 March 2007
4.12.Judgment of Murphy J dated 12 March 2012
4.13.Transcript of proceedings from 6 September 2010
The Independent Children’s Lawyer relies on the following:
5.1.Single expert report of Associate Professor Q dated 20 September 2011.
5.2.List of issues dated 17 October 2011
SHORT HISTORY
The mother was born in 1959 and is now aged 52.
The father was born in 1961 and is now aged 51.
The parties married in 1991.
The parties’ first child M was born in January 1998 and is now aged 14.
The parties’ second child L was born in March 2000 and is now aged 12.
The parties separated in August 2003.
The parties divorced on 2 November 2004.
CREDIT
Both parties are heavily invested in this litigation. At times both said things which were inconsistent or inherently unlikely. Where there is conflict in their evidence, I will make findings based upon the overall evidence that exists about a particular event or circumstance.
DETAILED CHRONOLOGY
The mother was born in 1959 and is now aged 52.
The father was born on in 1961 and is now aged 51.
The parties married on in 1991.
The parties’ first child M was born in January 1998 and is now aged 14.
The parties’ second child L was born in March 2000 and is now aged 12.
The parties separated in August 2003.
In January 2004, the father commenced a relationship with Ms C. He remained in this relationship for approximately four years. During his oral evidence, the father said he never cohabitated with Ms C.
The parties divorced on 2 November 2004.
In 2006, the father purchased a property in northern Sydney.
On 19 September 2006, consent orders were made providing for child support and an alteration of the property interests of the parties.
In early 2008, the father commenced a relationship with Ms S. This relationship lasted approximately three and a half years. During his oral evidence, the father said he cohabited with Ms S for approximately six months.
In September 2008, the mother became liable to pay the father $13,515.80 by way of costs.
Around the end of 2008, the father purchased a property in the Blue Mountains.
In November 2009, the mother became liable to pay the father a further sum of $9,246 by way of costs.
In February 2010, the mother and the children relocated to Newcastle.
On 20 August 2010, the mother alleges that the father threatened to slit her throat. The mother filed a Notice of Abuse and Risk to this effect on the 30 August 2010.
Around April 2011, the children spent time with the father, the paternal uncle, the father’s partner Ms S, and Ms S’s children in the Blue Mountains.
On 27 May 2011, the father filed a Notice of Filing Foreign Judgment in the Superior Court of Arizona against the mother. He says this was to secure the $13,515.80 costs order in his favour against the mother’s property in United States of America (“USA”).
On 11 August 2011, the mother filed a Notice of Abuse and Risk. The mother said that L rang her on 14 April 2011 from the Blue Mountains, complaining that she “had been made to sleep during the night with the father’s brother [Y] in the same bed.” The mother says L was “quite distressed and crying.” The mother also asserts that the children witnessed the father and their paternal uncle fight and “the father threw a number of chairs across a patio and swore profusely at his brother.”
In December 2011, the father travelled with the children to USA to see their extended paternal family.
Around December 2011 or January 2012, the father commenced a relationship with his new partner Ms W.
MAJOR ISSUES
Violence and aggression
The mother alleges the father has hit the children, and has been abusive and threatening towards them.
The mother alleges that the father told the children that he would “slit [the mother’s] throat.” The father denies he ever said this. On the first day of this less adversarial trial, the mother read out a text message she had received from M which read:
Nighty-night mumma, I miss you already. … [referring to the father] was being really mean coz [L] threw a bag and it knocked over a glass of water. He was eff this and eff that, saying I was a liar and so were you and grandmamma and that he was going to kill you and slit your throat. I never want to come here again. I was really sad coz I don’t want you to die but I know you won’t. I love you too much. Love [M].
The children repeated the allegation that the father said he intended to slit the mother’s throat to A/Prof Q. The child M said to A/Prof Q that the father threw a phone at the wall and said to her “I’ll slit your mother’s throat if I find a phone.” M said she felt “pretty scared” and that “it seemed like a very real threat at the time.” The child L told the expert that the father said to M “he’d cut mum’s throat.” L reported that this made her feel sad and angry.
The father asserts that the mother fabricated that text message, or asked M to send that text message to her.
It is inherently unlikely the mother has successfully coached both girls to convincingly say to A/Prof Q what they did say. I accept that the mother did not fabricate the text message on her mobile phone which she read out to me on the first day of the less adversarial trial.
Both children assert that the father has physically hit them. The child M reported to A/Prof Q that while on holidays interstate with the father in January 2011, the father denied L water on a six kilometre hike. M explained “it didn’t seem fair so [L] hit him and then he slapped her across the cheek and she was crying.” [L] also reported that the father slapped her across her face.
The child M told the expert that she was “sitting at the piano and made mistakes and he [the father] kicked me.” M also said that while bike riding the father “slapped [her] across the cheek” in retaliation for M poking him.
The father asserts that the mother (and the maternal family) has coached the children to make these statements.
The father relies on emails sent in January 2011 (while the children were on holidays with the father) from the maternal grandmother to M (exhibit 4). The first email says:
I want you to have a book for words and phrases and I want you to start thinking of something you did in the hols [sic] and your reaction to it, by way of story…you can prepare for your solicitor by relating events that have occurred and that you DO NOT WANT CNTACT [sic] thru the year, other than the odd holidays and certainly not for the length of time at Xmas.
There is another email dated 27 January 2011 from the maternal grandmother to M (also exhibit 4). It reads:
King Rat [referring to the father] will have no one to torment. You should have put grease on the stairs when you left and he might have had a fall back to H[e]ll.
… I imagine you will have a fair bit to tell your solicitor.
The father asserts the maternal grandmother encouraged M to manufacture a negative story about her time on holidays with the father and to relay this story to the Independent Children’s Lawyer. The father says M’s allegation that he slapped L during the interstate holiday is this story.
In oral evidence, the expert opined that “[M] is probably too old to be coached now. She’s got a mind of her own and she’s mature and intelligent, so I think we can’t dismiss [M’s] story as a case of coaching.” However the expert did opine that “[L] could easily be influenced because she is that much younger and quite timid.”
I accept A/Prof Q’s assessment that M was accurately stating what the father had done to both the children.
The mother says she did not know the maternal grandmother sent the email set out above. During cross examination, the mother initially said the emails between the maternal grandmother and M are just “banter”; reflective of “their humour”. She later said that she did not find the emails humorous and she was “annoyed” when she found out about them.
In his affidavit, the father says “I have never physically disciplined the children.” He said he had only been aggressive with the children when it was appropriate to discipline the children. During cross examination, the father conceded that he has sworn and yelled at the children. He conceded he has been angry in the children’s presence and this may have frightened the children.
The mother annexes to her affidavit sworn 20 May 2012 text messages from the father to her mobile. They include messages such as “you’re a fucking pig. I was waiting at the … already. Retarded drop kick…” and “Fuck you. You can pick them up at 8am or [I] shall drop them at 8.30 at your unit. Stupid fucking bitch get a fucking life and play by the fucking rules. CONFIRM”.
The father concedes in his affidavit “I acknowledge that I have at times been verbally abusive towards the mother.” During cross examination he admitted he has sent the mother text messages that are inappropriate, inflammatory and rude. The father also conceded in cross examination that he sent a number of emails to the mother written in an abusive tone.
The expert opined “I’ve seen the father’s emails to the mother, and he is abusive. And if he’s abusive to her…He’s abusive….people who are abusive are usually abusive.…they don’t just confine it to one relationship. If he’s abusive towards the mother, I’m sure that once he loses his temper he’ll be just as abusive towards the girls.”
I find that the father has been abusive to the mother and children over a significant period. This lack of respectful conduct has affected the children’s attitude, and particularly M’s, towards him.
The mother also contends that the father has been abusive towards medical practitioners. The mother relied on two letters from medical practitioners (exhibit 2). One of these letters is from Dr A, the children’s dental surgeon. Dr A wrote:
[H]is ex wife (mother of the girls) has been continually harassed by [the father] with issues of inappropriate and excessive control, which I can testify to in my dealings with him. He was rude and harassing to me and my staff and it took five letters/faxes of correspondence from this surgery to tell him that the girls had routine scale, clean and fluorides.
…I understand from [the mother] that he is still making life very difficult for them whenever she takes the girls to a medical or dental practitioner.
The father asserts these letters were fabricated. During cross examination, counsel for the father suggested Dr A’s letter was largely based on what the mother had told him. The mother denied the first sentence referred to any comments she had made to Dr A. She says that Dr A observed the father’s harassing and controlling behaviour in the dental surgery on more than one occasion. The mother conceded that Dr A had “asked how [she] was doing” and that the third sentence refers to that conversation.
I find that it is clear from the text of Dr A’s letter that the father was rude and harassing to Dr A and his staff.
Communication between the parties
The parties have been unable to effectively communicate in regards to significant issues relating to the children.
The mother asserts the father has unreasonably revoked authorisation for the children to attend upon some practitioners.
The father annexes to his affidavit a letter from the Principal of L’s school. In that letter, the Principal refers to an email the father sent to the school on the 2 March 2011, asking the school to “cease all ongoing therapy, remedial assistance or psychological counselling programs” for L. The father agrees he sent an email to that effect. He says he sent it as a “last resort” because he was unable to get any information about what assistance and therapy L was receiving.
In his reply, the Principal of F Primary School wrote “I will suspend these [counselling] sessions until I gain the written, mutual consent from both parents for them to recommence.”
The extreme approach taken by the father was not focused upon L’s best interests but on the outrage the father felt at him not being totally in the loop in relation to L’s therapy.
I have little doubt that the mother resisted including the father in decisions about therapy and treatment for the children because she firstly, saw the father as a large cause of some of the problems which the children had and secondly, because of the general conflict between the mother and the father.
The father says that the mother has continually denigrated him to the children’s medical practitioners. Counsel for the father referred the mother to the notes of Dr K, the children’s General Practitioner (Exhibit 3). On 19 April 2011, Dr K has written consultation notes for L. Those notes read:
Needs counselling supportive
re –abusive father taking
mother thru legal courts several
years & “using” children trying to gain custody
more as a tool to hurt mother
than true love of them
children do not want to stay [with] him
…
better since move to [Newcastle] & he controls less of their livesIn cross examination, the mother denied she used the word “tools” but conceded that Dr K’s notes accurately summarise what the mother told Dr K.
The father asserts the mother has taken the children to see medical practitioners without any consultation with him. During cross examination, the mother conceded that she had not responded to the father’s solicitor’s request for information about the children’s attendance on medical practitioners.
The mother conceded she did not inform the father about M attending a dermatologist. She also conceded that she did not inform the father that the General Practitioner had recommended counselling for L.
The mother conceded she did not ask the father whether he consented to L receiving speech therapy. She also did not inform the father that she was taking L to a speech therapist for an initial assessment. She asserted that she did send the father a copy of the speech therapist’s assessment, but I am unable to say if that is so.
The father has also made some unilateral decisions regarding M’s extra curricular activities. During cross examination, the father conceded he had unilaterally taken M out of several extra-curricular activities, against M’s wishes. The father said that he understood these activities were all outside of school hours and he was concerned the children were involved in too many extra-curricular activities, and that it may be detrimental to their health.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII FLA are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
Counsel for the father submits that the children need to be able to have a meaningful relationship with both their parents and that the children’s relationship with their father has been curtailed since the mother moved to Newcastle. This is because the father has not been able to spend as much time with the children as he previously did. He asserts that he is now less able to be involved with their schooling.
The child L has been diagnosed with idiopathic non familial microcephaly. A/Prof Q opined that “the mother is inclined to veer towards an over-protective attitude and inclined to regard [L] as handicapped while the father is inclined to take perhaps an overly dismissive approach but to favour a position of regarding [L] as ‘normal’.” The expert regarded the father’s approach on this to be the “one significant benefit for [L]” for spending time with him. I accept that is so.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
I have found that M accurately reported to A/Prof Q that the father has physically hit the children. Although there is some risk that the father will again hit the children, the past physical abuse has not been systemic. The greater risk is that the children will suffer psychological harm at the hands of the father.
The father is seeking to spend time with L even if M does not spend time with him. The father has a propensity to be verbally aggressive and when doing so, uses foul language. A/Prof Q’s evidence is that it is unlikely that if the father is unrestrained (as he is) in his aggression with the mother that he would be restrained in his aggression with the children.
In this regard the “slit your throat” text message sent by M to her mother is relevant. I accept that the mother did not (as the father asserted) fabricate the text message on her mobile phone which she read out to me on the first day of the less adversarial trial.
A/Prof Q said in her oral evidence “if [[L]’s] also exposed to abuse and aggressiveness [by the father], then that…cancels out the benefits” of her spending time with the father. There is a need in this case to protect the children from psychological harm from abuse from the father.
The additional considerations
Children’s views (s60CC(3)(a))
In her expert report, A/Prof Q notes that both children say they wish to spend less time with their father.
A/Prof Q notes “[M] would prefer to have the weekends to pursue her social life and to spend time with her dad in the holidays.”
The expert said that “the impression was that [L] is not enthusiastic about spending weekends with her father but reluctant to say much about it.”
In her report, A/Prof Q opined that M should be able to choose whether she spends weekend time with her father after September 2012. During cross examination (in early June 2012), the expert modified her position; “I think one weekend a month for another 12 months… then possibly they need to be able to choose.”
An important issue in this case is whether L should spend time with her father, even if M chooses not to see him. The expert opined that “[L] is fearful” and “[a]s [M] spends less time with their father, [L] is likely to find that situation more difficult without the support of her older sibling.”
Counsel for the father submits that M’s statements of wishes to A/Prof Q should be seen in the context of the growing importance of her peer relationships to her and the view of both girls should be seen in light of their mother’s attitude to the father and her failure to encourage the relationship between the girls and their father. I do not accept this. Although these factors play a part, so in greater measure does the father’s propensity for verbal aggressiveness and the use of foul language.
Counsel for the Independent Children’s Lawyer’s gave information from the bar table that she was instructed when the Independent Children’s lawyer spoke with the children that they were “more positive than they were with Dr [Q] with respect to time with the father, especially holiday time”. Counsel said that “when [the children] spoke with [the Independent Children’s Lawyer]…they did have some positive things to say [about holiday time] especially about spending some time with their cousins in the US[A] who are about the same age as them.”. That information can be given little weight given the method by which that information was provided to the court (that is, an unsolicited statement from the bar table by counsel for the Independent Children's Lawyer in final submissions). This is particularly so where that statement differs from the evidence given by the Chapter 15 expert and no suggestion was made to the independent expert that her opinion in relation to the children’s views was no longer accurate or current.
The child M’s views, in particular, should be afforded considerable weight.
Relationships of the children with the parents and other persons (s60CC(3)(b))
A/Prof Q reported that the children’s primary attachment is to their mother. The father conceded that the children’s primary attachment is to their mother and that she has been their primary carer for all of their lives.
The father told A/Prof Q that he believes the children and he have a “great relationship.” In cross examination he conceded that his relationship with the children is “good. It’s not fantastic.” Counsel for the father submits that the children have a good relationship with their father, although that relationship has been damaged by the mother’s lack of willingness to encourage that relationship. I find the father’s behaviour and the conflict between the parents plays a greater part in the damage that has been done.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
Counsel for the father makes the point that the father has not interfered with the children’s relationship with the mother but charges the mother with failing to facilitate a close relationship between the children and their father, particularly by what the father asserts is a unilateral move to Newcastle.
The mother asserts that “a letter was sent to the father on 01 July 2009 advising of the relocation”. The father annexes that letter to his own affidavit; it is clear the mother wrote “I hereby give notice that I propose to move together with the children to Newcastle to live…with my family and enrol the children at a school in the area… the proposed move would take place at the end of the school year 2009”.
I note the mother annexes to her affidavit an email from the father dated 1 February 2010, where he says “IN PRINCIPLE I AGREE TO THE RELOCATION UNDER THESE CONDITIONS”, and lists specific times he wished the children spend with him. The mother also asserts that the parties met on 14 February 2010 to “clarify some details regarding the relocation.” The father agrees the parents met on that date, but asserts the mother had already moved to Newcastle. I am unable on the evidence to find that it was a unilateral move.
It is some testament to the mother’s willingness to facilitate the children’s time with their father that she has, despite the distance and expense involved, travelled from Newcastle to Town E and back again (the bulk of the journey) in order to ensure that the children spend time with their father.
At the end of the litigation it was clear that the parents remain highly conflicted.
The father says that if M is given a choice to see her father, the maternal family will not encourage her to attend. The only real piece of information I have in relation to the maternal grandmother’s attitude are the two emails that are in evidence which indicate that M and her maternal grandmother have a close, almost conspiratorial, relationship in relation to attitudes regarding the father. That of course is not a healthy thing for M. I accept that the mother does not believe it is healthy either and has asked her mother not to continue to behave in that manner.
Counsel for the father says that the mother has failed to facilitate telephone calls with the father, keep him advised of medical and educational matters, and has sought to restrict his holiday time with the children and tried to prevent him from taking them on overseas holidays. There has been long history of conflict between the parents and given that circumstance, I have no doubt there is some basis for the father complaining that the mother has not at all times been facilitative of his relationship with the children.
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
The children are well settled in Newcastle. Neither party proposes to change the children’s residence.
The father gave evidence that he expects he will remain in northern Sydney until January 2013.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
The parties live a fair distance apart from one another. The children travel by public transport to and from the father’s house.
The current arrangement has the children spending time with the father three nights a fortnight, including Sunday night. This means they arrive to school late every second Monday morning. The children both said to A/Prof Q that they do not like arriving late to school on Mondays and would prefer changeovers occurred on Sunday evening.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))
Both parties have a capacity to provide for the children’s physical needs, although I conclude the mother is better placed to attend to L’s particular emotional and intellectual needs as a result of her microcephaly. The father’s behaviour is an impediment to him fully providing for the children’s emotional needs.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
M is an adolescent and L is approaching adolescence. I accept A/Prof Q’s assessment that “[M] is fairly clear on her feelings on this subject. She’s a reasonably mature young woman.” As I have said, M’s views should be afforded weight.
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
Not applicable.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
A/Prof Q said that M talked quite a lot about dancing. She told the expert that she attends four lessons per week and “love[s] it.” This is an activity with which the mother has a great affinity and aptitude.
A/Prof Q noted that the father “is not much involved” in the children’s dancing. The father told A/Prof Q that he “[doesn’t] think the girls have the commitment to professional dancing.” A/Prof Q also notes that M commented negatively on the father’s lack of interest or involvement in her dancing.
During his oral evidence, the father opined that M will give up her pursuit of dancing in the next 18 months and that dancing “doesn’t suit her ….” He said that M wasn’t really committed to dancing because she “doesn’t get up in the morning and do [exercises].” He also commented that he doesn’t think M “really enjoys it” and is only really involved from a “social perspective.”
The father has unilaterally reduced the amount of child support that he should have paid pursuant to the consent orders made in September 2006. He has been reasonably regular in the payment of the lower amount that he has unilaterally determined that he should pay.
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
I have already addressed the violence and aggression to which the children have been exposed.
Likelihood of order leading to further proceedings (s60CC(3)(l))
This litigation commenced in 2003. Since that time, there have been a significant number of applications in a case and contravention applications by both parties.
Both parties agreed to a restraint that prevents them from instituting proceedings in relation to the children. This leaves the mother the ability, if she thinks that it is reasonably necessary, to make an application under s 79A Family Law Act 1975 (Cth) (but that comment should not be as an encouragement to the mother to do so).
EQUAL SHARED PARENTAL RESPONSIBILITY
Given the long history of conflict between the parents and their current level of ability to communicate with one another, I find that any presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility is rebutted. I am satisfied that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for them. The mother has the primary care of the children. She is to be the parent who has the final decision on any major matter involving the children’s educational or medical care or relevant to their long term care, welfare and development. The father however is not to be cut out of the loop entirely and I will make an order that requires the mother to give notice to the father in writing or by email of any major decisions she intends to make and further requires her to consider any view expressed by the father within time frames set in the order.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Given that I do not propose to make an order for equal shared parental responsibility, I am not mandatorily required to consider equal time and substantial and significant time. In the circumstances of this case, given the distance that the parents live apart, neither equal time or substantial and significant time is reasonably practicable.
CONCLUSION ABOUT BEST INTERESTS
The benefit to the children of having a meaningful relationship with their father needs to be balanced against the risk that the children will suffer psychological harm arising from the father’s uncontrolled aggression. I give weight to the children’s wish that they spend less time with their father. The child M wants the right to choose.
Although A/Prof Q saw no other way than to not require M to spend time with her father if she did not wish to, I find that there is some value when weighing everything on an overall basis to make an order for M to spend time with her father for a limited period of about twelve months from the date of these orders. After that time, there will be no requirement for her to go.
The father opposes a requirement that the children be together when they see him.
I accept the assessment by A/Prof Q that L is a timid child. Having regard particularly to the expert evidence, I find that it is in L’s best interest not to go to her father unless M goes with her provided that that condition not apply if both parties agree that L has expressed the view that she wishes to see her father without M being present. After the end of third term holidays 2013, M is not to spend time with the father or communicate with her father unless M expresses the view that she wants to do so and that that will then happen on terms of M’s choosing. This is a compromise arrangement.
I find it is in the children’s best interests to limit their time with their father in the following ways:
115.1.By bringing the conclusion of alternate weekend time back from Monday morning to Sunday night.
115.2.By reducing the number of occasions of term time by half (this also has the advantage of halving the significant travel that the children are doing to see their father currently).
115.3.By placing a sunset provision on the time that M continues to be required to see her father (she can still see her father if she wishes to do so after this time) to about one year.
I acknowledge that that effectively might mean that the children choose not to see their father. That is certainly a significant risk given the attitude of the mother and also probably the attitude of the maternal grandmother (so far as I know that attitude).
After the third school term of 2013 the children’s time with their father will effectively be negotiated between the father and M. This means the father has one year to try and repair damage that has been created by the children being in the centre of the continuing blistering war between the opposing parents.
A sunset clause in October 2013 also affords the father the ability to travel overseas with the children in the July 2013 school holidays.
In order to make the children feel more comfortable when they are with their father, their ability (and particularly M’s) to be involved in social networking and to occasionally contact their mother should be restored to them by being able to have mobile phones. The provision of a mobile phone to the children during the children’s time with their father should not be interfered with by the father as a method of disciplining the children.
PROPOSED ORDERS
The Independent Children's Lawyer suggested that (in order 6(b) Schedule 1) that the children’s time with their father in the school holidays commence at 6pm on the last day of school. The mother proposed (and the father agreed) the father’s time commence at 11am the day after the conclusion of school. I will make an order that the father’s time can commence at 11am, which order will be effective until the conclusion of the term 3 school holidays in 2013.
In relation to the order allowing the father to spend time with the children in Newcastle, the father wants to be able to nominate a shorter period of time than from Friday after school until Sunday at 4pm. There is no reason why, if the father is unable to spend the full weekend with the girls, that he should not be able to nominate a shorter period of time, as long as 14 days notice is given to the mother as to the father’s intention to see the children on a particular weekend in any one month. I believe it is wise for me to specify in the orders the form of the notice and I will do so.
Neither party sought any specific order in relation to telephone communication. I will make an order in the father’s favour for telephone contact to both children up until the end of term 3 2013 school holidays. After that, telephone contact will be at M’s choosing but shall continue for L.
The father sought that the mother forward documents and information to him by email, fax or ordinary post. There is no evidence that the mother has access to a fax machine. Email or ordinary post will suffice.
There was discussion at the hearing as to the categories of documents and information which the mother should provide the father about the children, particularly about the children’s schooling. The mother asserted that she did not provide the father with information because of his abusive behaviour towards her. She asserted she had directed the school to forward information to him, and that the father was able to access information on the school’s website. The father asserted information from the school was often in the form of handouts, which were not available on their website, and that the mother had refused to provide them to him. I will make orders specifying the documents the mother is to provide to the father. What the mother sends the father is for his information and the father is not to communicate with the mother in relation to the contents of what is sent.
Both parties agree that once new Australian passports are obtained they are to be held in the Family Court of Australia Sydney Registry until each child turns 18 years of age. When the father wishes to travel overseas with the children he wants to be able to provide a statutory declaration or an affidavit that he has complied with the preconditions that have been agreed to in relation to overseas travel (see order 12 as made by me) and then be able to pick the passports up. It would be more desirable however if both parties were required to provide written authority for uplifting of passports. If that consent is unreasonably withheld, then either party can on short notice approach the court for an order for the uplifting of passports. I appreciate that that might invite future litigation but it is preferable than having a circumstance where passports can be uplifted based on a document prepared by one party without any notice given to the other party.
The parties disagree as to how old each child should be when they lose the right to obtain that child’s health records and other information from any medical practitioner or associated profession who provides a medical service to the girls. The father wants it to be their 16th birthday; the mother wants it to be their 15th birthday. I find that in the circumstances of this case, it is appropriate to allow each child to have privacy in relation to their own medical records from the age of 15 onwards. I am fortified in that decision by the current policy of the Department of Human Services to issue Medicare cards to persons aged 15 or older (see Also, requests for Medicare and/or Pharmaceutical Benefits Scheme claims information for a family member aged 14 or over must be accompanied by their signature (see customer/forms/2855).
Both parties agree that normal provisions should be made for the children to be with their father on Father’s Day and their mother on Mother’s Day. The order that has been made in relation to the father spending time with the children in Newcastle will allow him to at least spend Father’s Day in 2013 with the girls.
In the event that the ferry service was not in operation, the mother opposed an alternate changeover point on the east side of the train station, proposing instead McDonalds at Town G near the F3 freeway exit. The question is who should do the travel up the F3 or down the F3. Given the amount of travel the mother has historically done, it is appropriate that the father take up what will probably be quite a small burden (if any). The mother’s proposal will be preferred.
The mother wishes to restrict the medical appointments to which the father can attend to critical medical appointments, not day to day care. Although that language is somewhat loose, it is appropriate, given that the mother is to have sole parental responsibility, for her to decide on what are significant medical appointments for either of the girls and what are simply routine appointments. I will make an order similar to the order requested by the mother.
The mother only wants to forward critical medical reports to the father. All medical reports that the mother receives in relation to either of the children should be forwarded to the father.
The father is a citizen of the USA and proposes to obtain American passports for the children. In his affidavit the father says that prior to 2002, the USA refused to allow dual citizenship. In case the American rules regarding dual citizenship change again, the father would like to seize the opportunity to obtain American passports for the girls now.
Initially, the mother was opposed to the children obtaining American citizenship and passports. However, by final submissions, the mother agreed the father could obtain American passports for the children on the following conditions:
132.1.that the father pay for the passports;
132.2.the passports are held in the Family Court Registry until the children are 18 years of age;
132.3.that the American Consulate are informed that the passports are held in a Family Court Registry (and that if travelling to the USA, the children would be entering on their Australian passports up until the age of 18); and
132.4.that the passports reflect the children’s Australian address.
Given normal practices in relation to passports (which I understand refer to a country of birth but not current address), it may be that the mother’s fourth condition is unfeasible.
The father proposes the passports should be held in the Sydney Registry. The mother proposes the passports should be held in the Newcastle Registry. Given the only current proposal for overseas travel is that of the father’s, the passports are to be held at the Sydney Registry.
The father regularly travels overseas. He has taken the children on four overseas holidays. The father prefers taking the children to the USA during the American summer. Counsel for the father submits that both children would benefit from the opportunity to spend time with their extended family in the USA and in India to gain a better appreciation of their heritage. Both countries are Hague convention countries. The Independent Children's Lawyer proposed, and the father agreed, that the father be allowed to travel with the children in the July 2013 school holidays for 16 days.
In cross examination, the mother said that she would agree to the father taking the children overseas for more than a week as long as that time does not impinge on the children’s schooling. However, in final submissions, the mother wanted the father only to take the children overseas for a period of eight days (not 16 as proposed by the Independent Children's Lawyer and endorsed by the father). I accept that M will be in year 10 and that M is a conscientious student who values her studies. I do not however think that the disruption that is caused to M, either at the end of term two or the beginning of term three in 2013 will be of sufficient significance to outweigh the benefits that M will receive from overseas travel. I therefore prefer the proposal of the Independent Children's Lawyer and the father in relation to the number of days the father can take the children overseas.
The father seeks liberty to take the children to non Hague convention countries. The father’s affidavit says “in an online search [on Bali, Bangkok, Fiji, Kuala Lumpur, Phuket and Singapore are among the ‘Top 10 Package Destinations’. None of these countries are signatories to the Hague Convention.” That statement by the father is substantially inaccurate. I note that Thailand (Bangkok and Phuket), Fiji and Singapore are all in fact signatories to the Hague Convention. Counsel for the father submitted that the father has always returned the children home from overseas trips and I accept that is so. She also submitted that M is now at an age where she could not be forced to live in another country against her will. Whilst M is old enough to attempt to escape, whether she could do so is another question. Given the choices of places to holiday to convention countries, there is no need to heighten the mother’s concerns by allowing the father to holiday to a non Hague convention country, so I will not do so.
During final submissions, the mother did not oppose the order sought by the Independent Children's Lawyer in relation to the retention of the children’s current surname.
The mother sought an order that the father only introduce any new partner to the children after the father had been in a relationship with that person for a period of six months. The father expressed no opposition against this order being made and I accept that in this case it is an appropriate order.
SECTION 118 ORDER
The Independent Children's Lawyer sought an order that neither parent bring any further application for any variation to the parenting orders that have now been made or any enforcement of those parenting orders unless the permission of the court is first obtained.
Counsel for the father asserts that the mother has in fact filed more applications in this matter than has the father over the course of the history of litigation between the parties about the children.
Given the lengthy history of the litigation between the parties in relation to the children and the current ages of the children, this litigation has been vexatious, in the sense that word has been used in Marsden & Winch [2012] FamCA 557. This order was not opposed by either party and I think it is appropriate that I make that order. It is also appropriate that I remain as judge manager in this case so that if any application for leave is made then if I am reasonably available I might be able to expeditiously deal with any new difficulty.
CHILD SUPPORT
Consent orders were made on 19 September 2006 which were, inter alia, in the following terms:
3. That by way of child support departure the husband is to pay child support for [M] born … January 1998 in the amount of $225.00 per week which is to be adjusted on 1 July of each year in accordance with the annual CPI;
4. That by way of child support departure the husband is to pay child support for [L] born … March 2000 in the amount of $225.00 per week which is to be adjusted on 1 July of each year in accordance with the annual CPI;
5. That the payments of child support to be paid pursuant to orders 3 and 4 are to be made on a weekly basis commencing on Friday, 22 September 2006 and weekly thereafter until a child support terminating event. Those payments are to be made by direct deposit to the wife’s Greater Building Society account number …;
6. That the husband pay the costs of the children’s private schooling tuition fees, textbooks and all fees for literacy and maths groups for each of the children whilesoever they attend [X] School from Kindergarten to Year 12. That the amounts paid by the husband pursuant to orders 1-4 be credited against the husband [sic] liability for child support pursuant to any administrative assessment and to be treated as full satisfaction of his liability.
The children no longer attend X School.
The mother has sought that the father pay all educational and ancillary costs for the children (so that in effect the previous Order is revived to cover the current schooling costs of the children).
Financial position of the parties
I am not confident that either party has been entirely frank about their financial position.
The mother’s financial position
The father says that the mother has failed to give full and frank disclosure of her financial position. A week before the commencement of the hearing, the father’s lawyer attempted to serve a subpoena on the mother. The mother did not accept service. The father had not sought directions for the mother to provide information in relation to her financial position at any of the pretrial events before me.
I accept the mother was under the impression that her compliance with the order to file a financial statement was what was required. I do not place a great deal of weight on the fact that she failed to produce those documents sought in the subpoena so close to the date of the hearing.
Of more significance, is the mother’s failure to provide full or proper explanation in relation to assets she received from the property settlement in 2006. As part of the settlement, the mother received land in the USA. At the time, one valuer opined it was worth $1.7 million. A second valuation was done, and that expert opined the property was worth $1.2 million. The mother says those valuations were over-inflated, and in 2006, the property was worth only $100,000. The mother now contends the land value has dropped even further because of the Global Financial Crisis. She says she received a quote that the land was worth $32,000. The mother says that the property was encumbered with taxes that she couldn’t afford. She gave a large portion of the property to friends, as a way of paying off a $40,000 debt she owed to them. The mother’s evidence about all of this was less than satisfactory, but I am unable to find that the mother currently has any significant interest in real estate in the United States. The mother is currently living in her mother’s home and does not appear to have any assets any longer.
The mother is teaching two dance classes per week at B Dance School on a barter arrangement whereby the dancing school gives the children unlimited tuition as a contra to the mother’s personal exertion. She says she has never received remuneration in that role. During cross examination, the mother said that she had been in discussions with the Dance School about teaching full time once the hearing was over.
The father’s financial position
The father’s financial position is equally unclear.
The father is the sole director and shareholder of Z International Pty Ltd and Z Services Pty Ltd. He says he is not an employee of these companies, but receives “management fees”. In the 2010-2011 financial year that amount was $78,000. This figure accords with the father’s individual tax return for 2010-2011 which lists his total (gross) business income as $78,000. In the father’s oral evidence, he said that he “might take money out as dividends or to reimburse expenses”. The father originally said in his oral evidence that for the “2011 tax year”, he received approximately “$95,000 paid in dividends to [him] personally” but later said he wasn’t sure about the quantum of dividends. This is at odds with his tax return which does not show the father receiving dividends. It also does not accord with the financial reports of Z International Pty Ltd which show a trading loss in 2011 after the payment of expenses. I note in both the Financial Report for Z International Pty Ltd and the Financial Report of Z Services Pty Ltd for the year ended 30 June 2011 (part of exhibit 7) the Director’s report says “no dividends were paid during the year”. The father also receives a range of personal benefits through Z International; a motor vehicle, domestic and international travel, regular cleaning from a housekeeper, a large proportion of gas and electricity bills and office relocation expenses. Z Services Pty Ltd would have made a profit of about $25,000 in the 2011 financial year from normal trading had it not been for a substantial expense claimed in relation to a loss in a joint venture. I am unable to form any precise view as to the current level of income and emoluments of the father on the basis of the evidence he has provided. It is however more than $78,000 per year and probably more than $95,000 per year.
The father owns properties in northern Sydney and the Blue Mountains. These properties are heavily negatively geared. The mother seeks to garnishee rent for these properties. During cross examination, the father said it was unlikely he would be able to meet the mortgages on these properties if the rent was garnisheed.
The father also holds title over a property in Europe. He says this property was originally his mother’s and his maternal aunt’s property and they agreed to transfer the title to him, so they did not have to manage the administration of the property. The father says he did not pay for the property when it was transferred to him, but he has a liability to his mother’s estate of $66,000. He says the property is rented out, but after the property manager deducts their fees, the property only earns 5 euro profit per month.
Counsel for the father submits that since making the final property orders there has been a significant change in the father’s financial circumstances in that both his income and his assets have reduced dramatically as a consequence of the global financial crisis. Change of circumstances is of course not the test. In any event, I am unable to make a finding about whether or not that is so and certainly I cannot make a finding as to the extent of any reduction in the father’s wealth and income on the material he has provided.
Counsel for the father points to the fact that the mother’s move to Newcastle has:
155.1.Enabled her to obtain some employment;
155.2.Allowed her to live with her mother;
155.3.Allowed her to place the children in schools that are less expensive.
Counsel for the father also points to the fact that the father has had to pay the full costs of A/Prof Q’s report.
Legal principles
In the Marriage of Gilmour (1995) FLC 92-591, the Full Court said that in determining an application to vary an existing departure order:
…we are not persuaded that as a matter of law, it is necessary to establish, as a threshold matter in an application to vary an existing order for departure from an administrative assessment, a change of circumstances or any other matter contained in Section 66N(2) of the Family Law Act …or as contained in Section 83(2) of that Act or Section 129 of the [Child Support (Assessment) Act 1989 (Cth).]
The Court went on to say:
In the determination of such an application the court must apply the three stage process which, according to the decision of this Court in Gyselman [(1992) FLC 92-279], is required under Section 117. That is, the court must satisfy itself:
1. Whether one or more grounds for departure in Section 117(2) is established.
2. Whether it is ''just and equitable'' within the meaning of Section 117(4) to make a particular order.
3. Whether it is ''otherwise proper'' within the meaning of Section 117(5) to make a particular order.
Gilmour was followed in In the Marriage of Bryant (1996) FLC 92-690, where the Full Court said:
It must however be recognised that once an order has been made departing from an administrative assessment, before there can be a variation of (or “departure” from) that existing order, it must be established to the Court’s satisfaction, that since the making of the existing order circumstances have arisen as a result of which the financial capacity of either party is now significant reduced (s117(2)(a)), or the costs of maintaining the child have been affected (s 117(2)(b)) or the existing order now results in an unjust and inequitable determination of child support (s 117(2)(c)). There is nothing in Gilmour to suggest to the contrary.
The mother’s application to vary the orders to provide for school fees and expenses relies upon s 124 Child Support (Assessment) Act 1989 (Cth) (“CSAA”). The mother needs to establish what she seeks is just and equitable and otherwise proper.
The father’s application to vary the 2006 Orders
In relation to s 117(2)(c) CSAA, the father asserts that he has lost about $2.5 million in recent times as a result of a failed property venture. I am unable to accept the father’s assertion about that loss. In addition, the father himself in his oral evidence indicated that there may be significant legal claims that he can make against a builder and architect arising out of problems with water penetration in the construction that led to a significant inability to market the properties for a significant period of time.
Under the 2006 consent orders, the father is currently required to pay $2,274.58 per month. The father asserts his financial circumstances have changed and he can no longer afford to pay the amount that was ordered in September 2006. He says his “personal and business income has dropped dramatically.” In doing so the father would rely upon s 117(2)(c)(ia) CSAA as a ground for departure.
I am not satisfied based upon the father’s evidence about his financial position (as discussed above) that he has established that his income, property and financial resources are such that in the special circumstances of this case the current order is unjust and inequitable. If I am wrong in concluding no ground for departure exists, the next issue is whether or not it would be just and equitable with regards to the children, the mother, and the father, to do something different from what the father had agreed to do, when he consented to the current child support orders in the context of an overall alteration of property of the parties in 2006. Again, I find that the father has failed to make out a case based on s 117(4) CSAA matters that an alteration would be just and equitable.
The mother’s application for variation
It is the responsibility of both parents to pay for the educational costs of the children. In 2006 the father had agreed to take on that responsibility whilst the children were at X School (until they completed year 12). He was relieved of that legal responsibility when the children moved. The main matter to take into account is the respective financial capacities of the parties. I have discussed the difficulties in the evidence about that on both sides. I conclude it would be just and equitable and otherwise proper for the father to pay one half of the children’s private school tuition fees, text books and all fees (if applicable) for literacy and maths groups for each of the children.
I infer any reduction in the level of support the mother receives from the father would place a burden on the tax payer because the mother would receive some increase in Commonwealth benefits and in the circumstances that would not be otherwise proper.
Child Support Arrears
The parties consented to orders in September 2006, that the father pay child support at a rate of $225 per child per week, to be indexed annually. The child support order was sought by consent at the same time as the consent orders for property were entered into. There is no doubt the father received substantial assets at the time the property settlement was entered into.
The father unilaterally decided to pay $923 per month, which he says is the rate he would be required to pay by the Child Support Agency. The father has used the online child support estimator to obtain this figure, entering his adjusted taxable income as $76,543. So, he has unilaterally decided not to pay the child support that he was ordered to pay. The father simply took the law into his own hands and recalibrated the monthly amount that he paid.
As a result, arrears have been accruing. The mother annexes to her affidavit sworn 20 May 2012 a letter from the Child Support Agency, certifying arrears of $30,528.91 as at 23 April 2012.
Outstanding cost orders
The father had two cost orders made in his favour. The father annexes to his affidavit two costs assessment orders from a Registrar. The first order, dated 12 September 2008, is for $13,515.80. The second order, dated 11 November 2009, is for $9,246. The father asserts the mother has failed to pay both orders.
The mother disputed the quantum of the first costs assessment. In her affidavit, the mother asserted “the tax assessment was done and ended up totalling $6,056.32 and a sum of $6000 was agreed as payment.” The mother annexed a Notice Disputing Itemised Cost Account to her affidavit, dated 23 July 2007. In the notice, the mother’s then lawyers contended costs should be $6,056.32. During cross examination, the mother said “at the time, and [even now] I still do think that [the Notice Disputing Itemised Cost Account] was what a tax assessment is.”
The mother conceded she had no evidence that the parties had agreed to reduce the costs to $6000. She said that was what she was led to believe from her lawyer at the time.
I have no reasons not to accept that valid and quantified costs orders have been made against the mother.
Outstanding school fees
In 2006, the father was ordered to pay the “costs of the children’s private schooling tuition fees…for each of the children whilesoever they attend the [X] School”.
The mother says the father has failed to pay school fees for the children for terms 2, 3 and 4 of 2009. The father agreed he did not pay those term school fees.
In her affidavit, the mother asserts this totalled to $15,172.50. However, during cross examination, the mother conceded that $2000 of the bond money to hold the children’s place at the school was put towards the school fees.
The outstanding figure for school fees is consequently $13,172.50. This amount should be added to the father’s outstanding arrears.
Conclusion in relation to financial matters
I have concluded that the father should pay one half of the children’s school tuition and certain other expenses.
I conclude that the father’s application to vary the current child support order and discharge arrears of child support be dismissed except that those arrears should be reduced by the amount that the mother currently owes the father under orders 3 and 4 made 19 September 2006 which I find are $13,515.80 and $9,246. The mother can, from time to time, nominate to the father the manner in which she requires that payment to be made (under the old order it was to a particular bank account).
Consequently, the father’s arrears should be reduced by an amount of $9,589.30 (13,515.80 + 9,246 – 13,172.50). That is, the father should be given a credit against arrears of child support in the amount of the two costs orders, less the amount that he failed to pay under the order in relation to school fees for the children for terms 2, 3 and 4 of 2009.
The mother should also be allowed to have security for the payment and for that purpose the father’s two properties at northern Sydney and the Blue Mountains are to be charged with the arrears and pursuant to that charge the mother may lodge a caveat on both those properties until the father pays the arrears. In the event that the father does not pay the arrears within three months from the date of these orders, the mother or the Child Support Agency (whichever is applicable) may apply for an order for sale by way of enforcement.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 November 2012.
Associate
Date: 2.11.2012
SCHEDULE ONE – ICL’S PROPOSED ORDERS
All previous parenting orders are discharged.
The Respondent mother is to have sole parental responsibility for the children of the marriage [M Sathra] born … January 1998 and [L Sathra] born … March 2000.
Each parent shall have the responsibility for making day to day decisions in relation to the care, welfare and development of the children while the children are in the care of that parent.
The mother must consult with the father before she makes any long term decisions pertaining to the children.
The children shall live with the mother.
The father is to spend time with the children as agreed, in the event of no agreement at the following times
a.For one week of the short school holidays, in the event of no agreement the father shall commence to spend time with the children on the last day of school prior to the school holidays at 6:00pm until 5:30pm seven days later.
b.For three weeks of the summer school holidays, as agreed, in the event of no agreement the father shall commence to spend time on the first Friday of January at 6:00pm until 5:30pm on the Friday of the fourth week of January, 21 days later.
The father is to spend time with the children between the date of these Orders and 14 January 2014 in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the third weekend of the month. Should that weekend by a long weekend his time shall commence on the Thursday evening at 6:00pm if the Friday is a pupil free day or a public holiday. If the weekend is a long weekend and the Monday is a pupil free day or a public holiday his time shall end at 5:30pm on the Monday.
In order to facilitate the time the children spend with the father in orders 6 and 7 above:
a.The mother shall ensure that the children are place on [public transport] between [Central Coast town E] and [northern Sydney] at 5:30pm at the commencement of the father’s time with the children, and the father shall ensure the children are placed on [public transport] from [northern Sydney] to [Central Coast town E] at 5:30pm at the end of his time with the children.
b.In the event that the children fail to board the [public transport], as ordered in Order 7(a), the parent with whom the children are with shall immediately notify the other parent.
c.In the event that the [public transport] service is not in operation, as ordered in Order 7(a), changeover shall occur at the eastern side of the … train station as soon as practicable.
The father is to spend time with the children in Newcastle no more frequently than one weekend a month, for a period no longer than from Friday afterschool until Sunday at 4:00pm, if the following requirements are met:
a.The father ensures that the children attend all extra-curricular activities and any social activities the girls would like to attend.
b.If overnight time is to occur, the father shall have appropriate accommodation including separate beds.
c.The father gives the mother 7 days notice in writing via email to her email address.
To facilitate Order 9 above, the father shall collect the children from their school(s), and return the children to [SP] High School at completion.
The father may travel overseas with the children so long as the following conditions are met:
a.The country to which the children will spend time in has an advisory by the Australian Department of Foreign Affairs and Training no more serious than ‘exercise a high degree of caution’ and that such a country is a signatory to the Hague Convention.
b.The father provides the mother with an itinerary, including details of flights and transportation, addresses of accommodation and telephone numbers on which the children can be contacted on, at least 21 days prior to departure via email.
c.The father shall notify the mother of any change in the itinerary as soon as practicable.
d.The father shall facilitate a phone call between the children and the mother at the minimum of one phone call every five days while the children are in his care overseas.
In the event that the father wishes to travel overseas with the children during the school holiday between terms 2 and 3, and he complies with above Order 11, the children shall spend 16 days with the father as agreed, in the event of no agreement the father shall commence to spend time with the children on the last day of school prior to the school holidays at 6:00pm until 5:30pm 16 days later.
The mother shall not initiate contact with the children on their mobile phones while the children spend time with the father, except in cases of emergency. In the event that the children call their mother while spending time with the father the mother shall ensure that the telephone conversation last no more than 15 minutes for both children.
The father may attend all school, medical and extra-curricular activities to which parents normally attend.
The father may attend upon a counsellor with the children during the times the children spend time with the father. If he intends to do so he shall notify the mother of that counsellor’s contact details and shall provide authority for the mother to discuss the content of those sessions with the counsellor if the counsellor deems it appropriate.
The mother shall do all things necessary in order to facilitate the children becoming American citizens and gaining American passports
Once the American passports are obtained for the children, the American passports shall be held in the Family Court of Australia, Sydney Registry until each child turns 18 years of age.
The mother and the father shall do all things necessary in order to facilitate the children obtaining new Australian passports.
Once new Australian passports are obtained for the children, the Australian passports shall be held in the Family Court of Australia, Sydney Registry until each child turns 18 years of age except when each parent provides a written authority to the Registry Manager seeking their Australian passports to be released for the purpose of overseas travel in compliance with these orders.
The mother must forward to the father by email or ordinary post copies of all school reports, medical reports relating to the children and any major information regarding the children’s achievements in sporting or other activities.
Communication between the parents must pertain only to aspects relating to the care of the children and cannot be abusive or denigrating of the other parent and as far as possible the parents should not use foul language.
Neither parent is to denigrate or criticise the other parent or any member of the other parent’s family in the presence or hearing of the children, nor permit a third person to do so in the children’s presence.
The father is restrained from using physical force with the children or as far as possible using abusive or foul language towards the children or in the children’s presence.
Both parents are restrained from filing or serving any further application for parenting Orders or any enforcement of these Orders without first obtaining leave of the Court.
The parents are restrained from discussing these proceedings with the children or showing any documents that pertain to these proceedings with the children.
The mother shall within seven days of receipt of these Orders provide copies to the schools that the children may attend.
The parents shall ensure, as far as possible, that the children are referred to by the surname [Sathra] at all times.
Each parent shall keep the other informed of their current residential address and telephone number, and shall inform the other parent within 7 days of any change.
Notations
A.It is noted that the children will be able to bring their own mobile telephone to the father’s residence.
B.The father shall at all times spend time with the children together unless agreed between the parents in consultation with the children.
C.It is noted that the ICL shall explain the Orders made by the Court to the children.
SCHEDULE TWO – FATHER’S ALTERATIONS TO THE ICL’S PROPOSED ORDERS
The father is to spend time with the children as agreed, in the event of no agreement at the following times:
b.For three weeks of the summer school holidays as agreed, in the event of no agreement the father shall commence to spend time on the first day of the school holidays (being the day after school concludes) at 11:00am and ending at 5:30pm 21 days later in odd numbered years, and to commence at 11:00am on the day 21 days before the end of the school holidays and to end at 5:30pm on the last day of school holidays in even numbered years.
The father is to spend time with the children
between the date of these Orders and 14 January 2014in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the third weekend of the month. Should that weekend by a long weekend his time shall commence on the Thursday evening at 6:00pm if the Friday is a pupil free day or a public holiday. If the weekend is a long weekend and the Monday is a pupil free day or a public holiday his time shall end at 5:30pm on the Monday.The father is to spend time with the children in Newcastle no more frequently than one weekend a month, for a period no longer than from Friday afterschool until Sunday at 4:00pm, and he may determine the length of time he spends with the girls, if the following requirements are met:
a.The father ensures that the children attend all extra-curricular activities and any social activities the girls would like to attend.
b.If overnight time is to occur, the father shall have appropriate accommodation including separate beds.
c.The father gives the mother 7 days notice in writing via email to her email address.
To facilitate order 9 above, the father shall collect the children from their school(s), and return the children to McDonalds Restaurant at [B] at completion.
11. The father may travel overseas with the children so long as the following conditions are met:
a.The country to which the children will spend time in has an advisory by the Australian Department of Foreign Affairs and Training no more serious than ‘exercise a high degree of caution’
and that such a country is a signatory to the Hague Convention.
Once new Australian passports are obtained for the children, the Australian passports shall be held in the Family Court of Australia, Sydney Registry until each child turns 18 years of age except when the father provides a statutory declaration or affidavit that he has complied with Order 11 to the Registry Manager seeking their Australian passports to be released on the father for the purpose of overseas travel in compliance with these orders.
The mother must forward to the father by email or ordinary post or facsimile copies of all school reports, medical reports relating to the children and any major information regarding the children’s achievements in sporting or other activities.
Notations
B.The father shall at all times spend time with the children together unless agreed between the parents in consultation with the children.
BALANCE OF ORDERS SOUGHT
That each parent is to advise the other of all medical appointments with respect to the children within 24 hours of having made such appointment by giving in writing by email or fax the date, time, place, name, address and specific medical reason for appointment for the relevant consultation.
That each party shall forthwith authorise the other to obtain access to the records of any health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists. Both parties shall have access to the records of the children’s General Practitioner until the children are 16 years of age.
That each party shall forthwith authorise all health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists to make available any and all of the children’s records upon request by the other party.
That each party shall do all things and execute all documents to ensure that any school or other education provider is authorised to provide any information concerning enrolment, process, education and welfare of the children to the other party or any other information as requested by the other party.
That the mother be prevented from lodging or causing the lodgement of any Postal Redirections from any of the father’s addresses (including home, Post Office boxes work, etc.) for the mother or the children.
If Father’s Day falls on a weekend that the children would not otherwise be with the father, then the children spend time with the father that weekend.
If Mother’s Day falls on a weekend that the children would otherwise be with the father, then the children live with the mother that weekend.
FINANCIAL ORDERS SOUGHT
That paragraphs numbered 3, 4, 5 & 6 of the Financial Orders dated 19 September 2006 be dismissed.
That all CSA payments to be determined by way of the standard CSA calculation.
That the father’s CSA arrears be entirely expunged, including all interest charges.
In the event that Order 38 is not made, that the mother pay to the father the amounts of the two (2) Costs Orders dated 12 August 2008 and 11 November 2009 in the sums of $13,515.80 and $9,246.00 respectively within 14 days of the date of these orders. In the event the mother fails to comply with this order, the father’s costs are to be paid by the mother by way of withholding the father’s CSA payments until the father’s full costs have been expunged, or alternatively the mother to do all things necessary and sign all documents required to transfer to the father a portion
In the event that Order 38 is not made, that the mother pay the father’s costs herein, including all Independent Children’s Lawyers fees, Family Report costs, and all other costs associated this application on a full indemnity basis.
In the event that Order 38 is not made, that the father’s costs be paid by the mother by way of postponing CSA payments until the father’s full costs have been expunged.
SCHEDULE THREE – MOTHER’S ALTERATIONS TO THE ICL’S PROPOSED ORDERS
The father is to spend time with the children as agreed, in the event of no agreement at the following times
b.For three weeks of the summer school holidays, as agreed, in the event of no agreement the father shall commence to spend time on:
i.the first day of the school holidays at 11:00am and ending at 5:30pm 21 days later in odd numbered years;
ii.the day 21 days before the end of the school holidays at 11:00am and to end at 5:30pm on the last day of school holidays in even numbered years.
The father is to spend time with the children between the date of these Orders and 14 January 2014 in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the
thirdfirst weekend of the month. Should that weekend by a long weekend his time shall commence on the Thursday evening at 6:00pm if the Friday is a pupil free day or a public holiday. If the weekend is a long weekend and the Monday is a pupil free day or a public holiday his time shall end at 5:30pm on the Monday.In order to facilitate the time the children spend with the father in orders 6 and 7 above:
c.In the event that the ferry service is not in operation, as ordered in Order 7(a), changeover shall occur at the
eastern side of the … train stationMcDonald’s at [Town G] as soon as practicable.The father is to spend time with the children in Newcastle no more frequently than one weekend a month, for a period no longer than from Friday afterschool until Sunday at 4:00pm, if the following requirements are met:
a.The father ensures that the children attend all extra-curricular activities and any social activities the girls would like to attend.
b.If overnight time is to occur, the father shall have appropriate accommodation including separate beds.
c.The father gives the mother 7 days notice in writing via email to her email address.
To facilitate order 9 above, the father shall collect the children from their school(s), and return the children to McDonalds Restaurant at [B] at completion.
In the event that the father wishes to travel overseas with the children during the school holiday between terms 2 and 3, and he complies with above Order 11, the children shall spend 8 days with the father as agreed, in the event of no agreement the father shall commence to spend time with the children on the last day of school prior to the school holidays at 6:00pm until 5:30pm 8 days later.
The father may attend all school, critical medical appointments (not day to day care) and extra-curricular activities to which parents normally attend.
The mother shall do all things necessary in order to facilitate the children becoming American citizens and gaining American passports, provided that:
a.the children’s passport reflect their Australian address
b.the father pay for both the children’s American passports
c.the American consulate is informed that the passports are held in the Family Court of Australia, Newcastle Registry until the children are 18 years of age.
Once the American passports are obtained for the children, the American passports shall be held in the Family Court of Australia,
SydneyNewcastle Registry until each child turns 18 years of age.Once new Australian passports are obtained for the children, the Australian passports shall be held in the Family Court of Australia,
SydneyNewcastle Registry until each child turns 18 years of age except when each parent provides a written authority to the Registry Manager seeking their Australian passports to be released for the purpose of overseas travel in compliance with these orders.The mother must forward to the father by email or ordinary post copies of all school reports, critical medical reports relating to the children and any major information regarding the children’s achievements in sporting or other activities.
BALANCE OF ORDERS SOUGHT
That each parent is to advise the other of all medical appointments with respect to the children within 24 hours of having made such appointment by giving in writing by email or fax the date, time, place, name, address and specific medical reason for appointment for the relevant consultation.
That each party shall forthwith authorise the other to obtain access to the records of any health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists. Both parties shall have access to the records of the children’s General Practitioner until the children are
1615 years of age.That each party shall forthwith authorise all health care providers including naturopaths, counsellors, psychologist, doctors, podiatrists, paediatricians, speech pathologists and dentists to make available any and all of the children’s records upon request by the other party.
That each party shall do all things and execute all documents to ensure that any school or other education provider is authorised to provide any information concerning enrolment, process, education and welfare of the children to the other party or any other information as requested by the other party.
That the mother be prevented from lodging or causing the lodgement of any Postal Redirections from any of the father’s addresses (including home, Post Office boxes work, etc.) for the mother or the children.
If Father’s Day falls on a weekend that the children would not otherwise be with the father, then the children spend time with the father that weekend.
If Mother’s Day falls on a weekend that the children would otherwise be with the father, then the children live with the mother that weekend.
School holiday access period to begin the day after the conclusion of school and ends the day before the beginning of school irrespective of pupil free days.
In 2013, [M] negotiates with her father the duration of the holiday period (as per Dr [Q’s] recommendation Page 55, para 9)
That the father be restrained from introducing the children to any new partner until the father’s relationship with that person has existed for a period of 6 months.
FINANCIAL ORDERS SOUGHT
That all applications received by the father for departure from child support be dismissed.
That the father be ordered to pay all arrears of Child Support together with the relevant CPI increases.
That the father be ordered to pay all arrears for school fees dating back to Term 2 at [X] School in 2009 to date, together with all ancillary costs associated with the girls’ education to date and respectively thereon.
That if the father is not ordered to pay for educational and ancillary costs, that the Child Support be revised upwards accordingly.
That the father be ordered to pay child support on the 7th day of each month and failure to do so to be enforceable by the court.
That the father’s child support be garnisheed from his employer currently at [NA] Pty Ltd or [Z] International Pty Ltd or any rent he receives from properties he holds by the Child Support Agency.
That the father be ordered to commence the establishment of a trust fund for [L] when she turns 12 years of age on … March 2013 to ensure she is suitably taken care of in the future.
That the two (2) Costs Orders dated 12 August 2008 and 11 November 2009 ordering the mother to pay the father’s costs in the sums of $13,515.80 and $9,246.00 be deducted from the father’s child support arrears.
- AGLC
- SATHRA & SATHRA (NO. 2) [2012] FamCA 935
- Case
- [2012] FamCA 935
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the eldest child, M, should be permitted to choose whether to spend time with the father, and whether the younger child, L, should spend time with the father independently of her elder sibling. The court was also required to determine the appropriate parenting arrangements for the children, considering the allegations of family violence and parental alienation.
Watts J discharged all previous parenting orders. The court found that the mother should have sole parental responsibility for the children, including the ability to travel with them overseas. The mother was ordered to provide the father with notice of any major decisions regarding the children's education, medical care, or long-term welfare, and to consider any views he expressed in writing within 21 days. Day-to-day decisions were to be made by the parent with whom the children were residing. The children were to live with the mother. The court made specific orders for the father to spend time with both children together between the date of the orders and the end of the third school term in 2013, with detailed provisions for the frequency, location, and duration of these visits, including requirements for notice, accommodation, and attendance at extracurricular activities. Crucially, the orders stipulated that the children were not to spend time with or communicate with the father in a manner inconsistent with the specific orders after the end of the third school term in 2013.
Orders
Orders of the court
Parenting
1.
All previous parenting orders are discharged.
2.
Except as provided in order 28, the Respondent mother is to have sole parental responsibility for the children of the marriage M Sathra born … January 1998 (“M”) and L Sathra born … March 2000 (“L”) (“the children”), including the ability to travel with them overseas.
3.
The mother give notice to the father in writing or by email of any major decision she intends to make about the children’s education or medical care, or major decision relevant to their long term care, welfare or development at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
4.
Each parent shall have the responsibility for making day to day decisions in relation to the care, welfare and development of the children while the children are in the care of that parent.
5.
The children shall live with the mother.
6.
The parties may at any time either generally or in respect of a specific occasion, vary these orders by both agreeing in writing to do so provided that the children shall not spend time with their father or communicate with the father after the end of the third term school holidays in 2013, in a way that is inconsistent with order 14.
7.
The father is to spend time with the children together between the date of these Orders and until the end of the third school term 2013 in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the first weekend of the month. Should that weekend be a long weekend because the Friday is a pupil free day or a public holiday, the children’s time with the father shall commence on the Thursday evening at 6:00pm. If the weekend is a long weekend because the Monday is a pupil free day or a public holiday the children’s time with the father shall end at 5:30pm on the Monday.
8.
In addition to the time in Sydney pursuant to order 7 and until the end of the third school term 2013, the father is to spend time with the children together in Newcastle no more frequently than one weekend in any one month, for a period no longer than from Friday after school until Sunday at 4:00pm, if the following requirements are met:
8.1. The father gives the mother 14 days notice in writing to her email address in the following form:
“I am available to have the children from insert time on insert date to insert time on insert date (if applicable). I shall be staying overnight at insert address.”
8.2. The mother is to give notice in writing to the father at least 7 days before the time nominated in the notice referred to in order 8.1 of all extra curricular activities and any social activities which the children are to be involved in during their time with the father.
8.3. The father ensures that the children attend all extra-curricular activities and any social activities referred to in the notice given pursuant to 8.2.
8.4. If overnight time is to occur, the father shall have appropriate accommodation including separate beds for himself and each child.
8.5.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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