Sloan and Janvier

[2018] FCCA 3816

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLOAN & JANVIER [2018] FCCA 3816

Catchwords:
FAMILY LAW – Parenting – spend time with – protracted litigation –  overseas travel – cost of travel – cost of private school fees – Rice & Asplund principles not satisfied.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-723

Applicant: MS SLOAN

Respondent: MR JANVIER

File Number: BRC 1714 of 2013

Judgment of: Judge Young

Hearing date: 23 November 2018

Date of Last Submission: 23 November 2018

Delivered at: Darwin

Delivered on: 23 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Sloan in person

Counsel for the Respondent: Mr Janvier in person

ORDERS

1. The children [X] born 2004 and [Y] born 2008 are to spend the first 3 weeks of the December school holidays with the father, commencing in December 2018, and the second 3 weeks with the mother and alternate in each subsequent year with time commencing on the day after the last day of term.

2. The children’s passports are to be released from the Darwin registry to the mother.

3. The children are permitted to travel to Country A with the mother or the father during their time with each parent. If the children travel to Country A with the father, the mother is to provide the children’s passports and “Identity card of Country A” cards to the father provided that he notify her 60 days in advance of his intent to travel with the children.

   NOTING THAT the father will pay half of any fees associated with renewing the children’s Identity cards or passports.

4. If either party intends to travel with the children they are to provide to the other parent an itinerary within 30 days of travel.

5. The children are permitted to travel overseas for any school excursion and should that travel interfere with the children’s time with the father there will be makeup time during the next school holidays with makeup time not to include any school time.

BY CONSENT IT IS ORDERED THAT:

1. Order 9(d) of the orders made 7 July 2015 is varied to read “by telephone, WhatsApp, Skype or FaceTime each night between 6:00pm and 8:00pm when they are not in the fathers care”.

2. Order 11 of the orders made 7 July 2015 is varied to read “that the mother or her family member will deliver and collect the children to and from Darwin Domestic Airport and the father or his family member will deliver or return the children to and from Brisbane Domestic Airport at the commencement and conclusion of the children’s time with the father”.

3. Order 22 of the orders made 7 July 2015 is varied to read “that the children’s school is hereby authorised to provide school notices, information, newsletters and school reports directly to each parent (and each parent shall be responsible for requesting that all such information be provided to them individually, at that parent’s cost) and to keep each parent informed of the children’s progress at school as well as all parent/teacher night appointments, extra-curricular activities involving the children so as to provide the parents and their nominees with the opportunity to attend. The sporting clubs or any other organisations which the children attend are authorised to provide information to the father.”

4. Order 24 (e) of the orders made 7 July 2015 is varied to read “refrain from any aggressive or violent conduct, or exposing the children to others being aggressive or violent”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. BRC 1714 of 2013

MS SLOAN

Applicant

And

MR JANVIER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children who are aged 14 and 10 and the parents of these unfortunate children have been involved in litigation on and off since 2013, that is, for approximately five and a half years.  They argue about a great many things, mostly matters that reasonable people would be able to reach some agreement about, but, unfortunately, they have not been able to reach an agreement. However, to their credit, many of the matters that I've had to deal with today were the subject of agreement, particularly the question of travel to Country A, and, as I said, I will make orders that the children may travel to Country A with each parent in the time the children spend with that parent. The mother, who will hold the passports and the Indentity of Country A card, will provide those documents to the father should he notify her 60 days in advance that he proposes to travel with the children to Country A.

3. Similarly, the children will be permitted to travel overseas for any school excursion and if that school excursion or school travel interferes with the time the children spend with the father there will be an order that there will be make-up time of an equivalent period added to the following holiday when the children spend time with the father.  There will also be an order that the children are to spend time in the first half and the second half of the Christmas holiday alternately with each parent. So this year, 2018, there will be an order that the children are to spend the first half of the Christmas school holidays with the father and the time will commence the day after the end of term. 

4. The real substance of the application concerns the mother's application that the order made by Judge Demack after a trial in July 2015 which provides that the parties are to share equally in the cost of school holiday travel - and the children travel four times a year to spend time with their father - should be borne equally.  The mother says that she cannot easily afford that because she is responsible for the children's school fees of attending a private school.

5. Those fees, it would appear, amount to, as far as I can see, about $13,500 a year.  The mother asserted at one point that the cost was $17,000 but there doesn't appear to be any evidence to support that.  The mother was in receipt of a gross income in the 2017 financial year of $101,048.  In addition, she receives a child support payment from the father of, at present, an amount of $6,256 or, on my estimation, a gross income of $107,304 per year.  The mother has not provided any detailed financial evidence of her living expenses or otherwise.

6. So the picture she draws is a very broad one.  Really, all I know is her gross income which I've calculated in the way that I've just described.  There is no evidence, for example, an income tax return, which shows what her net income is.  I might say that the mother relied on an affidavit which said that her gross income was in the order of $90,000 a year at one point. I'm satisfied that is not the case at all.  The father, according to the child support assessment, has a provisional income of $83,094 a year.  He, as far as I can see, has not provided an income tax return either or an income tax assessment for the last financial year.

7. So in a case about money neither party has really provided much in the way of useful evidence, apart from providing me with a child support assessment.  The father is paying $6,256 a year in child support and, assuming this figure is correct, would have a disposable income of about $76,838. Of course, he has to pay income tax from that as well and I can only guess what amount that might be as there is no evidence but I'm satisfied that there is a significant discrepancy or a significant difference between the incomes of the parties.

8. The gross difference, taking into account child support, is some $30,000 a year.  That would be affected by tax but in the absence of evidence I could only guess about what the net difference in income is between these parties.  I suspect the net difference is more like $25,000 a year but I don't know.  I am not satisfied that the mother cannot afford to pay school fees and to pay the equal share of the travel that she was ordered to by Judge Demack in 2015.  So that, in a sense, disposes of the matter because, having regard to the principle in Rice & Asplund (1979) FLC 90-723 where a party must satisfy a court if it seeks to vary existing parenting orders that there is a proper basis for doing so, I'm not satisfied that there is a proper basis for doing so.

9. I might say that it is also possible to seek a variation of a child support assessment based on one party incurring the expense of, for example, school fees in the event that the payment of the school fees was something that had been undertaken by agreement between the parents at an earlier time and it's appropriate that that arrangement continue.  I'm just giving that as an example of one of the matters that would be taken into account.  The mother was not aware that she could make such an application. If there are those issues to be agitated then it's appropriate, potentially, at least, that there be an application for variation of the child support agency, but, as I say, I'm not satisfied that there is a basis for varying the order and I refuse to do so.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 19 December 2018