SPENCER & SQUIRE (No.2)
[2017] FCCA 3162
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPENCER & SQUIRE (No.2) | [2017] FCCA 3162 |
| Catchwords: FAMILY LAW – Property – spousal maintenance – where lump sum and periodic payments are sought. FAMILY LAW – Child support departure. |
| Legislation: Births, Deaths and Marriages Act 1995 (NSW), ss.22 & 28 Child Support (Assessment) Act 1989 (Cth), ss.116, 117, 124 & 141 Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65 DAA, 65DAB, 65DAC, 90SB, 90SF, 90SE, 90SM & 90SS Family Law Rules 2004 (Cth), r.4.23 |
| Cases cited: Adamson & Adamson (2015) 51 FamLR 626 |
| Applicant: | MR SPENCER |
| Respondent: | MS SQUIRE |
| File Number: | SYC 8327 of 2016 |
| Judgment of: | Judge Harper |
| Hearing dates: | 26, 27 & 28 July & 11 August 2017 |
| Date of Last Submission: | 11 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC |
| Solicitors for the Applicant: | Barcus Doolan |
| Counsel for the Respondent: | Mr Schonell SC |
| Solicitors for the Respondent: | Anne Einfeld Solicitor |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parties shall have equal shared parental responsibility for making decisions about the long term care, welfare and development of the child [X], born 2016, (“the child”).
The child live with the mother in Town 1.
THE COURT NOTES THAT:
For the purposes of these orders, any reference to “School Holidays” means the school holiday period published by the school attended by [Y], born 2007 ("[Y]").
For the purposes of these orders, any reference to "the 4 Week Cycle" means a cycle of 4 weeks which shall operate during school terms and shall commence on 16 December 2017 with the cycle to be suspended during school holidays and recommence where it stopped in the previous school term after each school holiday period on the first Saturday of the following school term during which the Father has care of [Y].
For the purposes of these orders, any notice that is to be given or any agreement between the parties is to be in writing via email, text message or letter.
THE COURT FURTHER ORDERS THAT:
The child spend time with the father as agreed in writing between the parties and, in the absence of such agreement, from the date of these orders until 2 October 2018, as follows:
(a)During weeks 2 and 4 of the 4 Week Cycle in Town 1:
(i)From 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii)From 9.00 am to 1.00pm on Monday.
(b)Where the father provides notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, in Town 1:
(i)From 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii)From 9.00am to 1.00pm on Monday.
(c)Between 26 December 2017 to 2 January 2018 inclusive in Town 1 from 10:00am to 1:00pm and 3:00pm to 6:00pm each day.
(d)During the School Holidays at the end of terms 1, 2 & 3, in a single agreed week, from 10.00am to 1.00pm and 3.00pm to 6.00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
COMMENCING 2 OCTOBER 2018, THE COURT ORDERS PENDING FURTHER ORDER THAT:
The child shall spend time with the father as agreed in writing between the parties and, in the absence of such agreement, as follows:
(a)During weeks 2 and 4 of the 4 Week Cycle in Town 1:
(i)from 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and
(ii)from 9.00am to 1.00pm on Monday.
(b)Where the father provides written notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, on the Region A or in Sydney:
(i)from 12.00pm to 6.00pm on Saturday; and
(ii)from 9.00am to 3.00pm on Sunday.
(c)During the School Holidays at the end of terms 1, 2 and 3 in Town 1, in a single agreed week from 11:00am to 5:00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
(d)During the School Holidays at the end of term 4 in Town 1, in two agreed weeks, from 11.00am to 5.00pm each day and, failing agreement as to time frame, such time shall commence on the second and the sixth Saturday of each school holiday period.
THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
The child spend time with the father in Town 1, as follows:
(a)For 4 hours on the child’s birthday each year and, failing agreement as to time frame, from 12.00pm to 4.00pm;
(b)From 8:00am to 1:00pm on Christmas Day each even numbered year and from 2:00pm to 7:00pm on Christmas Day in each odd numbered year.
In order to facilitate the arrangements set out in orders 7, 8 & 9 above:
(a)On such occasions that the child is to spend time with the father in Town 1 the mother shall deliver the child to the father’s hotel at the commencement of each visit and collect the child from the father’s hotel at the conclusion of each visit;
(b)On such occasions that the child is to spend time with the father on the Region A:
(i)The father shall notify the mother of the hotel he has booked to accommodate the mother and the child 48 hours prior to the commencement of each visit. The father shall meet the costs of the accommodation which shall be no less than 4 star and the father shall use his best endeavours to ensure that the accommodation is at the same hotel/complex on each occasion and the father shall ensure that a cot has been booked in the room;
(ii)The father shall arrange the hire of a four door motor vehicle fitted with a baby car seat from Town 1 and will refund to the mother within 48 hours of receiving copies of receipts the cost of the petrol money to fuel the hire car used by the mother;
(iii)The mother shall make the child available at the hotel arranged by the father at the commencement of each visit and the father shall return the child to the hotel at the conclusion of each visit.
(c)On such occasions that the child is to spend time with the father in Sydney:
(i)The father will notify the mother of the hotel he has booked to accommodate the mother and the child no later than 48 hours prior to the commencement of each visit. The father shall meet the costs of the accommodation which shall be no less than 4 star and the father shall use his best endeavours to ensure that the accommodation is at the same hotel/complex on each occasion and the father will ensure that a cot has been booked in the room;
(ii)The father shall book and pay for return economy flights to and from Sydney for the mother and the child and notify the mother of those flights no later than 48 hours prior to the commencement of the visit;
(iii)The mother is to deliver the child to the father at his residence at the commencement of the father's time with the child and the mother is to collect the child from the father at his residence at the conclusion of the father’s time with the child or at such other location as may be agreed between the parties in writing.
The father shall provide to the mother 48 hours’ written notice in the event that he is unable to spend time with the child as provided for by these orders and the mother is under no obligation to arrange for make-up time should the father be unable to spend time with the child in accordance with these orders.
Each party keep the other informed as to his or her current residential address and telephone number and in the event of change, that parent notify the other party of the new address and/or new telephone number within 24 hours of the change occurring.
The parents forthwith do all acts and things to request that any medical, health, development, and professionals involved with the child are directed and authorised to communicate with and provide information and copies of documents to either parent at his or her request and cost.
The parents do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the child or either of them whilst in that party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided.
The mother provide to the father updates as to the child’s health, immunisation status, development, routine and milestones including video and/or still images on a weekly basis.
THE COURT FURTHER ORDERS THAT:
The child shall be baptised in the (religion omitted) faith at Church 1 in Town 1 and each parent shall nominate a Godparent for the child.
Each party shall forthwith do all acts and things and sign all documents necessary to register the child’s name as [X] with the New South Wales Registry of Births Deaths and Marriages.
The parties each enrol in and participate in until completion a parenting after separation course in order to assist in the improvement of communication and decision-making between them.
From the date of these orders until the mother and the child move into rental accommodation outside the home of the maternal grandparents or the child attains the age of 3 years, the father shall pay to the mother by way of periodic spouse maintenance, the sum of $4,167.00 per month with the first payment to be made on the first day of the calendar month following the making of these orders.
From the date the mother and the child move into rental accommodation outside the home of the maternal grandparents until the child attains the age of 3 years, the father shall pay to the mother by way of periodic spouse maintenance, the sum of $6,167.00 per month with the first payment to be made on first day of the calendar month following the mother and the child moving into rental accommodation outside the home of the maternal grandparents.
The periodic spouse maintenance payable by the father to the mother pursuant to orders 19 & 20 above shall be paid by way of electronic funds transfer into a bank account of the mother to be nominated by the mother and advised to the father's solicitors.
That the mother’s application for child support departure orders be dismissed.
Upon the child attaining the age of 2 years and 9 months the parties shall, for the purpose of seeking to reach agreement as to the parenting arrangements for the child, attend upon a Family Dispute Resolution Practitioner ("FDRP") as agreed and, failing agreement, as to the identity of the FDRP within 14 days of either party requesting attendance upon a FDRP then the father shall submit a list of three names and the mother shall select from the list within 14 days of receipt.
In the event that consent orders are not made by the date the child attains the age of 3 years, the parties are to apply to the Court for any outstanding parenting matters to be relisted for a further hearing.
The matter be adjourned to 30 May 2018 at 9.30am for mention in relation to property proceedings.
THE COURT ORDERS BY CONSENT THAT:
The parties do all acts and things and sign all documents necessary to place the child’s name on the wait list for School 3, School 2, School 1 and Primary School Town 1 and NOTING THAT the father will meet the fees incurred in making any such applications.
The signing of each document referred to in order 26 above shall not constitute an admission by either party that the child should attend such a school or that he should live in the city in which such school is located.
(a)Any such application shall not include any election for a boarding school option.
The signing of such documents shall not constitute an admission by the mother that she should contribute to the cost of such schooling or that the costs of such scholarship should otherwise reduce her child support entitlements.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Squire (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8327 of 2016
| MR SPENCER |
Applicant
And
| MS SQUIRE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a property and parenting matter between the applicant father Mr Spencer (“the father”) and the respondent mother Ms Squire (“the mother”) in relation to the child of their relationship, [X], born 2016 (“the child”). The father filed his Initiating Application on 14 December 2016. The mother filed her Response on 10 February 2017.
The matter was listed before me for final hearing primarily in relation to parenting matters. At the final hearing the father was represented by Mr Richardson SC of Counsel and the mother was represented by Mr Schonell SC of Counsel.
Procedural History
The matter first came before the Court on 15 February 2017 before his Honour Judge Kemp. On that day the parties attended a Child Dispute Conference with Family Consultant Ms K (“Ms K”). The Court noted the parties’ agreement for Dr C (“Dr C”) to be appointed as a single joint expert to prepare a report in the matter. The matter was then adjourned to 30 March 2017 for interim hearing in relation to the father’s time with the child in light of Ms K’s memorandum and lump sum spousal maintenance. The matter was also listed for final hearing on 26, 27 & 28 July 2017 in relation to final parenting orders, spousal maintenance and child support departure issues.
The matter was next before the Court on 30 March 2017 for interim hearing before his Honour Judge Coker. On this date the father sought orders for the child to spend time with him in Town 1, Sydney and the Region A. The mother sought orders as to spousal maintenance and for the father to repay a car loan. His Honour made interim orders, inter alia, for the parties to have equal shared parental responsibility, for the child to live with the mother, for the child to spend time with the father in Town 1, the Region A and Sydney on various dates and for the father to pay the mother interim spousal maintenance in the sum of $3,400.00 per month.
On 8 May 2017, the expert report of Dr C was released to the parties.
The final hearing took place on 26, 27 & 28 July 2017 before me. At the conclusion of evidence on day three, the matter was listed before me on 11 August 2017 for the purposes of oral submissions. On that date judgment was reserved.
Issues in dispute
The main outstanding issues between the parties for the purposes of this hearing were, as follows:
a)Whether the interim or final orders should be made;
b)Whether an order should be made for the child to be permitted to remain living in the Town 1 area or return to the Sydney Metropolitan area after the child attains the age of 3 years;
c)The quantum of time the child should spend with the father and where such time should take place;
d)The child’s surname;
e)Whether the child should be baptised at Church 2 in Sydney or at Church 1 in Town 1;
f)Child Support Departure; and
g)Spousal maintenance.
I note here that final orders for any alteration of property interests are yet to be determined.
Proposals
As set out in a minute of orders sought marked Exhibit “J” as handed up on the final day of hearing, the father sought the following orders:
MINUTE OF ORDERS SOUGHT BY THE FATHER
THE COURT NOTES:
A. The following definitions for the purpose of these Orders:
A.1.“Child” means [X] born on 2016;
A.2.“Father” means Mr Spencer born on 1977; and
A.3.“Mother” means Ms Squire born on 1982;
A.4.“School Holidays” means the school holiday period published by the school attended by [X]’s sister [Y] born 2007 ("[Y]");
A.5.“School Terms” means the school terms published by the school attended by [Y];
A.6."The 4 Week Cycle" means a cycle of 4 weeks which shall operate during school terms and shall commence on 26 August 2017 with the cycle to be suspended during school holidays and recommence where it stopped in the previous school term after each school holiday period on the first Saturday of the following school term during which the Father has care of [Y], and the cycle shall operate as to facilitate time between the child and the father:
A.6.1.Week 1 – time with the Father;
A.6.2.Week 2 – time at election of the Father;
A.6.3.Week 3 – time with the Father; and
A.6.4.Week 4 – time at election of the Father.
THE COURT ORDERS:
1. That the Mother and Father shall have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child.
2. That the Child live with the Mother.
3. That until further Order the Mother be permitted to live with the Child in Town 1 up until the date the Child attains the age of 3 years and upon the Child attaining the age of 2 years and 9 months the parties shall for the purpose of seeking to reach agreement as to the living arrangements for the Child attend upon a Family Dispute Resolution Practitioner ("FDRP") as agreed and failing agreement as to the identity of the FDRP within 14 days of either party requesting attendance upon a FDRP then the Father shall submit a list of three names and the Mother shall select from the list within 14 days of receipt and in the event that consent Orders are not made by the date the Child attains the age of 3 years, the parenting matter shall be listed for a further hearing.
4. Whilst the Child is living in Town 1 the Father shall spend time with him as agreed between the parties in writing and in the absence of such agreement as follows:
4.1.From the date of these Orders until 20 August 2017 in accordance with the interim Orders made by Judge Coker on 30 March 2017.
During School Terms
4.2.From 26 August 2017 until the Child attains the age of 16 months;
4.2.1.During week 1 of The 4 Week Cycle as follows on the Region A:
4.2.1.1.from 12.00pm until 5.00pm on Saturday and Sunday;
4.2.1.2.from 9:00am to 12:00pm on Monday;
4.2.2.During week 3 of The 4 Week Cycle as follows in Town 1:
4.2.2.1.from 4.00pm until 6.00pm on Saturday;
4.2.2.2.from 9:00am to 1:00pm on Sunday;
4.2.3.During weeks 2 and 4 of The 4 Week Cycle, where the Father provides notice the Mother no later than 5 days prior to commencement of the proposed time, as follows in Town 1:
4.2.3.1.from 12.00pm until 5.00pm on Saturday;
4.2.3.2.from 9.00am until 1.00pm on Sunday;
4.3.From the date the Child attains the age of 16 months until he attains the age of 3 years;
4.3.1.During weeks 1 and 3 of The 4 Week Cycle as follows on the Region A:
4.3.1.1.from 11.00am until 6.00pm on Saturday and Sunday;
4.3.1.2.from 9:00am to 1:00pm on Monday;
4.3.2.During weeks 2 and 4 of The 4 Week Cycle, where the Father provides notice the Mother no later than 5 days prior to commencement of the proposed time, as follows in Town 1:
4.3.2.1.from 12.00pm until 6.00pm on Saturday;
4.3.2.2.from 9.00am until 3.00pm on Sunday;
4.3.3.However the parties may vary the location and/or the dates of the visits scheduled to take place pursuant to Orders 4.2.1 and 4.3.1 as follows:
4.3.3.1.1.The Father provides notice in writing to the Mother 14 days before the scheduled visit requesting a change of location from Region A to Sydney, specifying which of the relevant Region A visit is to change, and the father nominate a replacement week, being either week 2 or 4 in The 4 Week Cycle;
4.3.3.1.2.The Mother shall confirm in writing within 48 hours that she is aware of the proposed change;
4.3.3.1.3.Following which that visit will occur in the amended location, on the amended week, at the same times as would have occurred had the visit occurred on the Region A, and the original visit to the Region A is vacated.
During School Holidays
4.4.In Town 1 during School Holiday periods as follows:
4.4.1.Between 23 September 2017 to 29 September 2017 from 11:00am to 4:00pm each day;
4.4.2.Between 26 December 2017 to 2 January 2018 from 11:00am to 5:00pm each day
4.4.3.From the date the child attains 16 months of age until he attains the age of 3 years, in a single agreed week during the school holidays, from 10:00am until 5:00pm each day and failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period;
4.4.4.for 4 hours on [X]'s birthday each year and failing agreement as to time frame from 12.00pm until 4.00pm;
4.4.5.From 8:00am until 1:00pm on Christmas Day each even numbered year and from 2:00pm until 7:00pm on Christmas Day in each odd numbered year;
5. In order to facilitate the arrangements set out in Orders 4 of these Orders:
5.1.On those occasions [X] is to spend time with the Father on the Region A:
5.1.1.the Father will notify the Mother of the hotel he has booked to accommodate the Mother and [X] 48 hours prior to the commencement of each visit. The Father shall meet the costs of the accommodation which shall be no less than 4 star and the Father shall use his best endeavours to ensure that the accommodation is at the same hotel/complex on each occasion and the Father will ensure that a cot has been booked in the room;
5.1.2.the Father shall arrange the hire of four door motor vehicle fitted with a baby car seat and will refund to the Mother within 48 hours of receiving copies of receipts the cost of the petrol money to fuel the hire car used by the Mother;
5.1.3.the Mother shall make the Child available at the hotel arranged by the Father at the commencement of each visit and the Father shall return the Child to the hotel at the conclusion of each visit;
5.2.On those occasions the Child is to spend time with the Father in Town 1:
5.2.1.the Mother shall deliver the Child to the Father’s hotel at the commencement of each visit and collect the Child from the Father’s hotel at the conclusion of each visit;
5.3.On those occasions the Child is to spend time with the Father in Sydney:
5.3.1.the Father will notify the Mother of the hotel he has booked to accommodate the Mother and [X] 48 hours prior to the commencement of each visit. The Father shall meet the costs of the accommodation which shall be no less than 4 star and the Father shall use his best endeavours to ensure that the accommodation is at the same hotel/complex on each occasion and the Father will ensure that a cot has been booked in the room;
5.3.2.the Father shall book and pay for return economy flights to and from Sydney for the Mother and the Child and notify the Mother of those flights no later than 48 hours prior to the commencement of the visit;
5.3.3.the Mother is to deliver the Child to the Father at his residence at the commencement of the Father's time with Child and the Mother is to collect the child from the Father at his residence at the conclusion of the Father’s time with the child or at such other location as may be agreed between the parties in writings.
6. That the Father shall provide to the Mother 48 hours notice in the event that he is unable to spend time with the Child as provided for by these Orders.
7. That each party keep the other informed as to his or her current residential address and telephone number and in the event of change, that parent notify the other party of the new address and/or new telephone number within 24 hours of the change occurring.
8. That the parents forthwith do all acts and things to request that any medical, health, development, and professionals involved with the Child are directed and authorised to communicate with and provide information and copies of documents to either parent at his or her request and cost.
9. That the parents do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the Child or either of them whilst in that party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided.
10. That the Mother provide updates as to [X]'s health, development, routine and milestones including video and/or still images on a weekly basis.
11. That the mother keep the father informed as to [X]'s health and immunisation status in a timely manner.
12. That [X] shall be baptised in the (religion omitted) faith at Church 2 in Sydney and that each parent shall nominate a Godparent for [X].
13. That each party shall forthwith do all acts and things and sign all documents necessary to register [X]’s name as [X].
Spouse Maintenance
14. That from the date of these Orders by way of periodic spouse maintenance, the Father shall pay to the Mother by way of cleared funds, the sum of $3,400 per month less amount paid by the Father by way of child support pursuant to any child support assessment, with the first payment to be made on first day of the calendar month following the making of these Orders and thereafter on the first day of each calendar month up until the date the Child attains the age of 3 years.
15. The periodic spouse maintenance payable by the Father to the Mother pursuant to Order 14 shall be paid by way of electronic funds transfer into a bank account of the Mother to be nominated by the Mother and advised to the Father's solicitors.
16. That the Mother’s application for child support departure orders be dismissed.
As set out in a minute of orders sought marked Exhibit “5”, handed up on the final day of hearing, the mother sought the following orders:
MINUTE OF ORDERS SOUGHT BY THE MOTHER
THE COURT NOTES:
The following definitions for the purpose of these Orders:
“[X]” means [X] born on 2016;
“Father” means Mr Spencer born on 1977; and
“Mother” means Ms Squire born on 1982;THE COURT ORDERS:
1. That the Mother and Father shall have equal shared parental responsibility for making decisions about the long term care, welfare and development of [X].
2. That [X] live with the Mother.
3. The Father shall spend time with [X] as agreed between the parties in writing and in the absence of such agreement in Town 1, as follows:
a. From the date of the Orders until 2/1/2018
i.Each Saturday and Sunday for two lots of 2 hours each day from 10:00am until 12pm and from 2:00pm until 4:00pm;
ii.On Christmas Day from 2pm until 4pm;
iii.On 2 October from 2pm until 4pm;
iv.Easter Friday and Easter Monday from 10 -12 am and 2pm until 4pm; and
v.On Father’s Day for two lots of 2 hours from 10:00am until 12pm and from 2pm until 4:00pm.
b. From 2/1/2018
i.Each Saturday and Sunday for two lots of 3 hours each day from 9:00am until 12pm and from 2:00pm until 5:00pm;
ii.On Christmas Day from 2pm until 5pm;
iii.On 2 October from 2pm until 5pm;
iv.Easter Friday and Easter Monday from 9 -12 am and 2pm until 5pm; and
v.On Father’s Day for two lots of 3 hours from 9:00am until 12pm and from 2pm until 5:00pm.
vi.Unless otherwise specified, the time referred to above, shall occur in Town 1 with the father collecting the child from the mother’s residence at the commencement of his time and returning the child to the mother’s residence at the conclusion of his time.
c. From 2 October 2018 the mother travel with [X] by plane to Sydney on no greater than 6 times a year. On those occasions [X] is to spend time with the Father in Sydney for two periods of two hours each day.
i) It is noted that the time [X] spends with the father in Sydney in accordance with order 3 above may vary the time [X] spends with the father to accommodate air travel schedule from Town 1 to Sydney on the Saturday morning, and the return air travel on Sunday afternoon.
ii) the Father will notify the Mother of the hotel he has booked to accommodate the Mother and [X] 48 hours prior to the commencement of each visit. The Father shall meet the costs of the accommodation which shall be no less than 4 star and the Father shall use his best endeavours to ensure that the accommodation is at the same hotel/complex on each occasion and the Father will ensure that a cot has been booked in the room; and
iii) the Father shall book and pay for return economy flights to and from Sydney for the Mother and [X] and notify the Mother of those flights no later than 48 hours prior to the commencement of the visit; and
iv) the Father at the commencement of the Father's time with [X] will collect the child from the mother’s hotel and the Father is to deliver [X] to the mother at the conclusion of the Father’s time with [X] or at such other location as may be agreed between the parties in writing; and
v) the Father shall provide to the Mother 48 hours notice in the event that he is unable to spend time with [X] as provided for by these Orders.
d. That upon [X] attaining the age of 3 years and in the event that the parties are unable to reach agreement about the parenting arrangements for [X] then either party is at liberty to file an application in this Court.
4. The mother shall have liberty, upon giving the father 7 days written notice to suspend the fathers time as provided for in 3 and 4 above on no more than one weekend per month.
5. The parties shall do all things and sign all documents to facilitate [X] receiving and renewing an Australian passport and an Italian passport and the mother shall retain [X]’s passport.
6. That [X] shall be known as [X] and that the parties shall do all things and sign all documents so that [X] is known to all persons, organisations and institutions by that name.
7. That [X] shall be baptised in the (religion omitted) Faith at Church 1, Town 1 and that each parent shall nominate a Godparent for [X].
8. That the parents do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the Child or either of them whilst in that party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided.
9. That each of the parties agree to undertake a course designed so as to assist in the improvement of communications between them in [X]’s interest.
SPOUSE MAINTENANCE
10. That the father pay to the Respondent an amount of $30,000 by way of lump sum maintenance.
11. That from the date of these Orders by way of periodic spouse maintenance, the Father shall pay to the Mother by way of cleared funds, the sum of $7,361 per month by way of interim spousal maintenance.
12. The periodic spouse maintenance payable by the Father to the Mother pursuant to Orders 11 and 12 shall be paid by way of electronic funds transfer into a bank account of the Mother to be nominated by the Mother and advised to the Father's solicitors.
CHILD SUPPORT
13. That by way of departure the father shall pay periodic child support of $350 per week for the period from the date of these orders until determination of the wife’s application pursuant to S90SM or until October 2019 whichever is the later.
14. That pursuant to section 124 of the Child Support (Assessment) Act 1989, the father pay by way of non-periodic child support the following:
a. The costs of private health insurance for the child;
b. All gap medical, dental and orthodontic expenses not covered by Medicare or private health insurance.
15. That the father pay the mother's costs of and incidental to the determination of these proceedings.
It can be seen that, essentially, the father, on the basis of a 4 week cycle, seeks time on the Region A which is certain in weeks 1 and 3 and time in Town 1, at his election, in weeks 2 and 4. Then after the child reaches 16 months of age until age 3, he seeks the discretion to elect to change the location in weeks 1 and 3 from the Region A to Sydney upon giving 14 days’ notice to the mother.
If orders were made in accordance with this proposal, after the child reached 16 months until he is three, the father would retain control over whether any time was spent with the child in Town 1 at all in weeks 2 and 4, and control over the location, either the Region A or Sydney, in weeks 1 and 3.
The father’s proposal also includes certain time during the Queensland school holidays in Town 1. It makes no specific provision for Easter or Father’s Day, or the 2018/2019 school holiday period.
The mother seeks a combination of time in Town 1 until the child is 2 years old, then in Sydney on no more than 6 times per year, with the father paying for travel and accommodation expenses.
The mother also proposes that the child spend time with the father each Saturday and Sunday, whether in Town 1 or Sydney. She proposes specific time at Easter and on Father’s Day
The father’s evidence is that the principle reason for time in the Region A is so that the child can form a bond with his older half sibling [Y], born 2007, (“[Y]”), a child of the father from his earlier marriage to Ms F, as well as some extended family. [Y] is currently 10 years of age and lives with her mother on the Region A. The father spends time with her every second weekend and also by agreement during school holidays, either on the Region A or in Sydney.
The mother’s position is that in Town 1 she has the stable support of her parents, with whom she was living at the time of trial. She gave evidence that they provide her with “emotional and practical support on a day-to-day basis”, including help with groceries, changing nappies and looking after the child. She says she grew up in Town 1 and there are a number of groups, activities and friends that provide a support network. She has a sister-in-law, cousins and close friends there who also have young children. She gave evidence that she will feel best placed at Town 1 to care for the child as his primary carer in the early stages of his life.
Background
The relevant, uncontested, background facts in this matter are as follows:
a)On 1977, the father was born. He is currently 40 years of age.
b)On 1982, the mother was born. She is currently 35 years of age.
c)On 2007, [Y] was born.
d)In 2014, the parties met.
e)In 2015, the parties commenced cohabitation in Sydney.
f)On 2016, the child was born. He is currently 14 months of age.
g)On 15 November 2016, the parties separated on a final basis as contended by the father, noting that the mother asserted the date of separation to be 29 October 2016.
h)In 2016, the mother and the child moved to Town 1.
i)On 3 December 2016, the father spent time with the child for the first time post-separation.
j)On 14 December 2016, the father initiated proceedings in this Court.
k)On 30 March 2017, the father commenced payments for interim spousal maintenance of $3,400.00 per month in accordance with the orders of Judge Coker of the same date.
Evidence
The father relied on the following documents:
a)His Further Amended Initiating Application filed 5 July 2017;
b)His Reply filed 15 March 2017;
c)His Financial Statement filed 15 March 2017;
d)His Affidavit sworn and filed 5 July 2017;
e)His Affidavit sworn and filed 24 July 2017;
f)His Affidavit sworn 11 August 2017 and filed in Court on 11 August 2017; and
g)The Affidavit of Ms F sworn and filed 5 July 2017.
The father was cross-examined.
The mother relied on the following documents:
a)Her Further Amended Response to Initiating Application filed 13 July 2017;
b)Her Further Amended Financial Statement filed 24 July 2017;
c)Her Affidavit sworn 30 June 2017 and filed 5 July 2017;
d)Her Affidavit sworn and filed 24 July 2017;
e)Her Affidavit sworn 11 August 2017 and filed in Court on 11 August 2017;
f)The Affidavit of Ms L sworn 30 June 2017 and filed 5 July 2017;
g)The Child Dispute Conference Memorandum of Ms K dated 15 February 2017; and
h)The Expert Report of Dr C dated 1 May 2017.
The mother and Ms L were cross-examined.
Counsel for both parties raised a number of objections relevant to some of the Affidavit material before the Court. The Court ruled on all outstanding objections and, accordingly, the relevant material is not read.
The following documents were received into evidence, as follows:
Exhibit Label
Document
Tendered by
A
Expert Report of Dr C dated 1 May 2017
25. Court
26. B
Letter from Ms J (Psychologist) to Dr S regarding the mother
27. Father
28. C
Report by Relationship Space for the father
29. Father
D
Emails regarding Birth Doctors Accounts dated 2016
Father
E
Photograph of cake from baby shower
Father
F
Birth registration document
Father
G
WhatsApp text message conversation
Father
H
Letter from the solicitor for the mother to the solicitor for the father dated 25 May 2017
Father
30. I
Dr C’s notes
31. Father
32. J
Proposed minute of orders sought by the father
33. Father
34. 1
Child Support Assessment dated 16.12.2016
35. Mother
2
Minute of Orders sought on behalf of the Father at the interim hearing on 30 March 2017
Mother
3
Father’s notice of costs dated 26.07.2017
Mother
4
Letter from the solicitor for the father to the solicitor for the mother dated 25 May 2017 entitled ‘Compliance with orders’
Mother
5
Proposed minute of orders sought by the mother
Mother
6
Letter from the mother’s solicitor to the Child Support Agency dated 21.07.2017
Mother
Expert evidence
The expert report, marked Exhibit “A”, was based, as described by Dr C, on the material filed by the parties and orders made so far in the proceedings, the Child Dispute Conference Memorandum dated 15 February 2017, a transcript of the proceedings on 30 March 2017 and the interviews conducted, as set out at the commencement of her report. Dr C recorded the observations made by her as a result of conducting interviews with the parents, the child, the maternal grandparents and [Y]. Dr C also spoke with the child’s treating General Practitioner, Dr S, via telephone.
Dr C gave oral evidence at the hearing.
I will refer to the content of the report as necessary during the course of these reasons.
Expert Report Recommendations
Dr C made recommendations in paragraphs 196 through 198 of her report to the following effect:
a)That child’s needs are best met by allowing him to remain living in Town 1 and to have as frequent as possible visits from the father and [Y].
b)That the child has some capacity to travel to Sydney with the mother to spend time with the father but that this must be limited because of the age of the child.
c)That once the child attains the age of 3 years the mother may consider relocating to Sydney, on the basis the father would provide her reasonable financial support to do so.
d)That the parents have professional assistance to help cope with the outcome of these proceedings and also to repair their communication.
It is important to bear in mind that when the expert report was prepared the father was pressing for a compulsory relocation order on a final basis. Dr C’s evaluation was undertaken, and her recommendations were made, in that context. As already observed, the father no longer presses for relocation prior to the child turning 3.
When Dr C produced her report, she acknowledged that the child was at a sensitive stage of development, and consequently, “decisions with respect to parenting arrangements at this age need to be made with particular caution”. I have borne this in mind.
The Child
The child is currently 14 months of age.
Although he was born three weeks premature, according to the available evidence he is progressing well and meeting normal developmental targets.
The father’s evidence
The father was cross-examined. He presented as a witness who gave careful consideration to his answers. I formed the impression he gave his answers frankly most of the time. However, at other times he seemed to fence with the questioner to draw implausible distinctions for the purpose of minimising the impact of evidence he thought might be damaging.
A salient example concerns the statement of the father recorded by Dr C at paragraph 103 of the Family Report as follows: “He said that in circumstances where [X] was allowed to stay in Town 1, then he would spend every alternate weekend in Town 1.”
In his Affidavit sworn 5 July 2017, the father responded to a number of claimed inaccuracies in Dr C’s report. At paragraph 132.13 of that Affidavit the father dealt with paragraph 103 of the expert report, but did not put in issue the sentence quoted.
However, in cross-examination he asserted he did not make such a statement to Dr C. He then equivocated. Over a lengthy exchange in questioning by senior counsel for the mother, the father ultimately asserted mutually exclusive propositions, i.e. that he both did and did not put forward every second weekend in Town 1 as a proposition to Dr C. This gave the impression that he was quite prepared to engage in words games if he thought it would suit his case.
The mother’s evidence
The mother was also cross-examined. She also gave the impression of being frank at times.
The father in submissions asked me to find that the mother was mendacious on several points, particularly, in her evidence about travel to the Region A and the existence of an agreement concerning the child’s surname.
The mother swore an Affidavit on 27 March 2017. She did not read this Affidavit at the hearing before me. She was cross-examined in relation to it. She agreed she swore the Affidavit for the purposes of the hearing before his Honour Judge Coker and in response to the father’s application for the child to spend time with him on the Region A. The mother agreed that she set out the facts she knew “might be relevant” to assist the Court in understanding how travel to the Region A might affect the child. Despite this, the mother made no reference in that Affidavit to a trip to the Region A with her mother on 5 & 6 March 2017. When cross-examined the mother gave answers suggesting the trip to the Region A was difficult for the child but could not offer any adequate explanation for not mentioning it, apart from stating she did not think it relevant. This was unconvincing.
The maternal grandmother Ms L (“the maternal grandmother”) gave evidence in the mother’s case. She swore an Affidavit on 30 June 2017. She was also cross-examined.
In particular, paragraphs 40 to 55 of her Affidavit deal with travel to the Region A with the child. They are preceded by a heading indicating this travel related to interim orders made on 30 March 2017. At paragraph 40, the maternal grandmother stated such travel to the Region A “has proved to be very strenuous on Ms Squire and [X]”. But she conceded in cross-examination that as at the date of swearing the Affidavit no travel to the Region A had taken place pursuant to the interim orders. As already noted above, the mother, child and maternal grandmother had travelled to and from the Region A on 5 and 6 March 2017, when the maternal grandmother had paid casual work as a (occupation omitted). The grandmother agreed in oral evidence that the mother enjoyed the trip. The grandmother could offer no convincing explanation for omitting this event.
Assessment of witnesses
The father submitted that I should find the mother and maternal grandmother to be an untruthful witness. The mother submitted findings about credit in the circumstances of this case were unnecessary and unhelpful.
In assessing the submissions on credit, I adopt with respect the dicta of Kent J in Carlson & Fluvium [2012] FamCA 32 at [165] to [169]. Civil courts usually refrain from specific adverse credit findings against litigants “if disposition of the case can legitimately be achieved otherwise”. Where litigants will have to co-parent for many years “adverse credit …carry the inherent risk that…they may be embraced as vindication for the pursuit of further conflict in the future.” The last point is particularly apt where a child is very young.
I also follow the caution of the Full Court of the Family Court of Australia (“the Full Court”) in Adamson & Adamson (2015) 51 FamLR 626 at [90]: “…in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issue joined between the parties but should be soundly based…”
Although the father’s evidence was unreliable in places I do not conclude he was untruthful.
I accept that at certain material points the mother’s evidence was inaccurate, and may have been tailored to what she saw as the interests of her case. I formed the view that her evidence was unreliable at times.
The maternal grandmother was clearly heavily partisan in the mother’s favour and I infer was strongly influenced by a desire to give evidence beneficial to her daughter’s case.
Overall, none of the witnesses impressed as reliable. All showed a willingness to be argumentative and, although intelligent and well educated, to put a partisan or self-serving gloss on facts at the expense of accuracy. The conduct of the parties, and the maternal grandparents, discussed later in these reasons, both at and immediately after separation and the birth of the child reflects poorly. I bear in mind that the parents gave evidence only a few months after the breakdown of their relationship, which neither properly understood, and the birth of their child. No person is at their best in such circumstances. Further, the maternal grandparents were plainly affected by distress at their daughter’s situation.
I consider it unnecessary and counterproductive to make affirmative adverse credit findings concerning any of the witnesses. As already discussed, to do so runs a real risk of entrenching or exacerbating existing levels of conflict, to the detriment of the child.
Moreover, the utility of conclusions about credit in a parenting matter which involves few significant factual issues and no significant risk factors, where equal shared parental responsibility is agreed and the parties will have to co-parent for many years into the future, is not self-evident.
I will make findings about disputed facts later in these reasons where it is necessary after consideration of all the evidence.
Relevant Law
The Approach in Goode & Goode
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, which are also a useful guide to approaching the resolution of the issues at a final hearing, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act[1].
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act). The presumption may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s.61DA(4) of the Act).
The parties both seek an order for equal shared parental responsibility. I will return to this question later in these reasons.
Best interests of the child
The best interests of a child are the paramount consideration (s.60CA of the Act).
It is convenient to consider the best interests of the children at this point. Findings and conclusions concerning the best interests of the child will be important in considering the application of the presumption of equal shared responsibility and thus the potential trigger of s.65DAA of the Act. In addition, as the decision in Goode & Goode (supra) makes clear that even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s.60CC of the Act.
The best interests of a child are to be determined by an examination of the considerations as set out in s.60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.
The father made reference to the objects in s.60B of the Act. The underlying principles set out in s.60B of the Act are as follows:
(1) The “objects”…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.
(2) The “principles” … 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 been 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 a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75]. After discussing Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 the Full Court said:
....thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.
Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by...” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
As to s.60CC(2)(a), the Full Court in Sigley v Evor (2011) 44 Fam LR 239 endorsed a number of earlier judicial statements of interpretation:
a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski v Albright [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405); and
b)A “prospective approach” is the preferred approach to s.60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court the examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (supra) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M v S (2007) FLC 93-313 per Dessau J; Godfrey v Sanders (2007) FamCA 102 per Kay J and Chamness v Hanson (2009) FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Chamness (supra) at [191].
The “meaningful relationship” consideration in s.60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in a child’s best interests.
Given the age of the child, a prospective approach to this consideration is unavoidable.
Dr C accurately pin pointed a central dilemma in this matter, namely the tension between supporting the psychological and physical wellbeing of the mother for the child’s benefit and the need for the child to form an attachment with his father. Dr C said: “Necessarily, however, this means that the father’s capacity to spend regular and consistent time with [X] and to establish the conditions necessary for form a significant attachment bond with [X] are limited.”[2]
[2] Paragraph 135 of Dr C’s report.
Dr C was clear that the child is at a critical period of development. At paragraphs 138 and 139 of the her report she opined:
Having said that, however, there is now a significant body of research indicating that fathers’ positive engagements with children, especially infant children, is associated with a range of positive cognitive, social and emotional benefits to the child. Infants whose parents separate prior to or shortly after birth are in an especially vulnerable position in terms of having enough contact with fathers to establish attachment bonds. Ideally, the conditions necessary for such a bond to develop involve short but frequent periods of time that fathers can spend with infant children involved in all aspects of their care routine, such as bathing, settling and feeding (when children move on to solid foods or are bottle fed). These early experiences allow an infant to develop familiarity and be comforted and soothed by a secondary attachment figure.
Overall therefore, [X] is at a critical period of his development where special consideration needs to be given to prioritising the continuity of a healthy primary attachment between [X] and Ms Squire and minimising stress on [X]. A secondary consideration would be the safe building of a warm and available relationship with Mr Spencer.
The child is in the initial stages of forming his primary attachment. There was no dispute that the mother was the primary carer and that it was essential for the child to form a secure attachment to the mother. Each additional attachment, including secondary attachment to the father, would be reliant upon the security of the primary attachment.
So the issue for the father presently is regular time with the child to allow the development of a secure secondary attachment to him.
At paragraph 168 Dr C said:
I think each of these parents have extraordinary contributions to make to [X]’s wellbeing and development. They each offer different but complimentary personal attributes that will assist [X] as he grows and develops throughout his childhood. They are both intelligent, capable individuals who have a good capacity for reliable and loving care of [X]. There is considerable research that children have much better outcomes when they have the consistent care and involvement of both parents throughout their lives. This is true in [X]’s case. However, and as mentioned elsewhere, at this stage of his young life, there are competing demands about how this outcome is best achieved.
Dr C gave oral evidence that at this stage of the child’s life changes happen very rapidly, even from week to week. Regular time with the father through these changes is necessary to form a secure attachment to the father.
It was common ground that the father was a central and important figure in the child’s life and should have a close, loving and meaningful relationship with the child.
The central question is how this can be facilitated at the early stage of the child’s life, with the parties living such a distance apart.
The proposed orders will allow the primary attachment to the mother to continue its proper formation while allowing a secondary attachment and meaningful relationship to develop with the father.
Section 60CC(2)(b), “abuse” and “family violence”
As to s.60CC(2)(b) of the Act, the terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3)). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
There is some evidence suggesting that the child has been exposed to incidences of family violence.
The first example concerns events that took place in November 2016.
At the time of the parties’ separation, the father was renting adjoining apartments at Suburb A, Sydney. He paid the rent and other expenses associated with this accommodation. The purpose of renting unit (omitted) was to provide accommodation for the maternal grandmother to support the mother, and possibly the paternal grandparents. Between 2016 the father went to (location omitted). While he was away, the maternal grandmother was staying in unit (omitted). The mother moved his belongings from unit (omitted) to unit (omitted).
The mother emailed the father on 13 November 2016 informing him that she had moved his clothes to unit (omitted). In response he requested “Please don’t touch my stuff”[3].
[3] Annexure “S2” to the father’s Affidavit filed 5 July 2017.
According to the mother’s version of events, upon his return on 14 November 2016, the father became enraged, and shook his finger at her. He raised the question of the child’s name. The mother says he was so aggressive she called the Police. However, she told Dr C that when asked by the Police whether she had fears that the father would physically hit her, she truthfully answered “No”.
The maternal grandmother gave evidence about this incident. She also asserted that the father was hostile and enraged about a possible change of the child’s name. She says that the father calmed down and presented himself as a different person to the Police.
According to the father’s version of events, the mother moved both his and [Y]’s belongings to unit (omitted). When he asked her to return the belongings to unit (omitted), she made a statement to the effect that her barrister had advised her to call the Police “if you do not leave.” She then called the Police.
The Police took no action on 14 November 2016.
The father made no reference to anger or a confrontation about the child’s name in his evidence.
The father then went to the Region A. By text message on 15 November 2016 he asked the mother to return [Y]’s and his possessions to unit (omitted) and also required the maternal grandmother to be gone by the time he returned[4].
[4] Annexure S19 p.101 to the father’s Affidavit filed 5 July 2017.
There is no evidence that the child was directly affected by or exposed to this incident.
Having considered the evidence, I do not find it necessary to prefer one version over the other. There was clearly a confrontation. Both parties felt aggrieved. Nonetheless, on either version the father was strongly motivated to assert his perceived rights over his accommodation.
Dr C addressed these events at paragraph 178 of her report. She felt concerned about what the incident indicated about the father’s attitude to resistance to his wishes from others. She commented as follows:
At the same time, I found there were some concerning inconsistencies between the father’s stated concerns and his actual behaviour. For example, on interview with me the father spoke in quite glowing terms about the importance and role of the maternal grandparents. He described them as being extremely good to the mother and doing the “heavy lifting” with respect to the care of [X]. He expressed that he understood that the mother needed the support and care of her parents. Despite this, his Application before the Court is for the mother to leave her parents. The father also wrote an email to the mother in November 2016 indicating that the maternal grandmother was not to be present in either apartment. When I questioned him about this the father told me that the maternal grandmother had “crossed the line” because she had moved his and [Y]’s belongings to the other apartment to assist the mother. I found these two positions impossible to reconcile. Clearly, at writing that email and deciding to evict the maternal grandmother from his places of residence, the father was making a strong statement about his expectations and the consequences if the mother and/or maternal grandmother violated these expectations. He was also clearly in a position of power and control in that he was able to terminate the maternal grandmother’s support of the mother and baby [X]. This event does lend weight to the mother’s expressed concerns that the father has been controlling and manipulated matters particularly when things did not go his way. I think that this also placed the mother in an extraordinarily difficult position. At that time she was clearly reliant on her mother for emotional and practical support. At that same time the father was also undertaking significant travel having just returned from the (activity omitted) at (location omitted) and another visit to the Region A to see [Y]. At that time, the mother needed the support and assistance from another capable adult in the household for the care of [X]. Consequently, I have concerns about the father’s behaviour at times when others are assertive or do not behave in a manner that he is happy with.
The second incident of alleged family violence took place at the (location omitted) in Town 1 on 3 December 2016. The father and [Y] met the child, the mother and the maternal grandparents. The purpose was to allow the father and [Y] to spend time with the child. The child was in his pram.
According to the mother, she insisted on staying with the child while the father and [Y] spent time with him. The father insisted on seeing the child without the mother present. An angry verbal exchange followed. [Y] began crying. The maternal grandfather tried to block movement of the pram and the father pushed it into him. Eventually the father and [Y] moved off some distance with the child for about half an hour. The mother stated that the child screamed and cried the entire time he was with the father.
The father agreed there was an angry exchange. He agreed [Y] began crying. He denied any physical altercation, although he states the maternal grandfather attempted to be physically intimidating. He said the child became unsettled towards the end of the half hour.
The maternal grandmother gave evidence supporting the mother’s version. In assessing this evidence I bear the partisan disposition of the grandmother in favour of the mother, discussed above.
The maternal grandfather gave no evidence.
Again it is clear an angry confrontation occurred. The versions are broadly consistent at many points. They reflect no credit on any of the adult participants. It is clear the child was directly exposed to the anger on this occasion. There may have been a minor physical altercation.
However, neither incident leads to the conclusion that the child is at risk of harm and needs protection in the care of either parent. Rather the incidents show that the parties in the immediate aftermath of a relationship breakdown and with a high level of distrust behaved inappropriately. The maternal grandparents became embroiled. There was a breakdown of ordinary civility. All lost sight, for a time, of the best interests of the child.
At paragraph 137 of her report Dr C said: “…all the adults will need to demonstrate considerable flexibility and make enormous efforts to be infant-focussed in their behaviour.”
She also observed at paragraph 142 that “it appears that subsequent to this early episode, that the parents have been able to manage handovers of [X] in a civilised and calm manner. Their capacity to do so moving forward is critical in terms of protecting [X] from toxic stress and ensuring he remains settled and comfortable in the care of both his parents.”
At paragraph 143 of her report, Dr C concluded that there was no evidence that the child had been exposed to or subjected to any direct physical harm or neglect however she did warn (at paragraph 141) the risks associated with exposing infants to family violence.
More importantly for the future, at paragraph 142 Dr C observed:
On the other hand, it appears that subsequent to this early episode, that the parents have been able to manage handovers of [X] in a civilised and calm manner. Their capacity to do so moving forward is critical in terms of protecting [X] from toxic stress and ensuring he remains settled and comfortable in the care of both his parents.
I give weight to this consideration.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine orders that should be made in a child’s best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In light of the child’s very young age, this consideration is not relevant.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
I have already discussed the nature of the child’s relationship with each of the parents above. In light of that evidence I am satisfied that the child is developing an appropriate relationship with the mother and the proposed orders provide the father a structure within which to do the same.
I give weight to this consideration.
(ii) and other persons (including any grandparent or other relative of the child);
The reliance placed by the mother on her parents suggests that at this early stage the child will have a nascent relationship with the maternal grandparents. It will be important for the child that this relationship continues and grows. The mother’s extended family lives in Town 1.
The father’s extended family lives on the Region A. His parents live there, as do his brother and his brother’s family. The father told Dr C that he sees his brother and family about once a month. As the child grows it will important for him to develop a relationship with these members of his extended family.
The same comments apply to the child’s relationship with his half-sister [Y]. The evidence demonstrates that [Y], at the present young age of the child, has a warm and loving relationship with the child. This is discussed in more detail below. It will have potential benefit for the child. The relationship with [Y] will be reliant upon the child forming a primary secure attachment with the mother.
I give weight to this consideration.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The parties in the first 12 months of the child’s life have been unable to agree on the manner and location of time spent with the father, the child’s name, or the place of baptism. The mother relocated to Town 1 without consulting the father. The parties have not yet had to deal with many of the major long term issues, such as education or health issues, but still can find very little agreement beyond a high level of generality.
However, participation in making decisions about major long-term issues should be readily possible for these parties. I refer to Dr C’s comments in paragraph 171, in particular that: “the parents have the capability and skills to communicate well should they choose to prioritise this”.
The evidence is clear that the mother has spent time with the child. She has been assiduous as his primary carer.
The father has spent time with the child. However, one material area of contention was the alleged failure of the father to spend time with the child over the Christmas period 2016 to 2017. It was undisputed that the father did not spend time with the child during this period. He gave evidence that he was unhappy about this. He travelled overseas. The father told Dr C that, after the incident in the Town 1 (location omitted), he felt he was being “set up”, and since there was no Court hearing before Christmas, but one in February 2017, on legal advice he was told not to visit the child. In his Affidavit sworn 5 July 2017 he said the mother: “made it really difficult for me to see [X] in Town 1 and on balance I thought it was best to try and sort out an arrangement at the February hearing”.
However, Dr C expressed concern that the father did not take the opportunity to spend time with the child over Christmas 2016. At paragraphs 165 and 166 of her report Dr C opined:
I was also concerned about the discrepancy between the father’s expressed complaint to me that he did not get to see [X] for “his first Christmas”. He also asserted that he had missed the first 6 months of [X]’s life and felt that this was because the mother had not made [X] available to him. However, on reading the material provided to me it seems that the father was, on multiple occasions, invited to spend time with [X] at his own convenience including over the Christmas period. It appears also from the material presented to me and the father’s own interview that he decided to take a personal holiday at that time. If this is accurate, then it seems that the father has adopted a rather unfortunate attitude to the responsibilities of parenthood insofar as he blames the mother for events that were well within his control.
I was also extremely concerned about the father’s attitude towards leaving the mother at home in the period immediately following [X]’s return from hospital. Bearing in mind that [X] was born three weeks prematurely and spent several weeks of his life in special care nursery, including having intense medical treatment involving time in an incubator, treatment for jaundice and so on; I found it extraordinary that the father then sought to attend, on a voluntary basis, a corporate (activity omitted) at (location omitted) some weeks after [X]’s return home. This seems highly inconsistent with the father’s expressed views that his top priority was the care of [X] and the mother at this delicate time. On interview, the father said that he thought that going away for such an event was better to give the mother space and that she had all the requirements she needed. I think this shows an extraordinary lack of insight into the needs of the premature baby and mother and the sort of emotional and practical support that is required in the weeks when a baby returns home.
On balance, the evidence supports a conclusion that the father has been uneven in his attitude to opportunities to spend time with the child.
I observe here as well that the father’s proposal, although structured around a four week cycle during [Y]’s term time, seeks to preserve for the father a discretion or election as to whether he spends weeks 1 and 3 with the child in Town 1.
Communication with the child is of less significance because of this young age, but I am satisfied both parents talk to the child. The father gave evidence that he sometimes sings to the child.
I give weight to this consideration.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother is the child’s primary carer. This is undisputed. She set out the expenses each week for the child in her Financial Statement. Although the father challenged the level of expense for some items he did not submit the mother was not spending money to maintain the child.
The father has paid child support as assessed although, the mother submitted that this assessment is not appropriate given what she asserts is the father’s true income. The father has also paid for all of the accommodation and travel to facilitate him spending time with the child and also paid rent for unit (omitted) in Sydney when the parties were together so that the maternal grandmother could be near the mother.
I am satisfied that both parents have fulfilled their obligations to maintain the child.
I give weight to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
I am satisfied that any extended separation from the mother at this stage would be detrimental to the child. The expert evidence is clear that the child must be given the opportunity to form a secure primary attachment with the mother, since all secondary attachments are reliant on this.
Although the attachment to the father is secondary at this stage of the child’s life complete separation from the father would be detrimental. No party is suggesting complete separation.
The evidence of Dr C was clear that at roughly the time when the child turns 15 months old he would be able to tolerate up to 6 hours of daytime contact with the father, separated from the mother. Ideally this would be in two blocks of three hours, one in the morning and one in the afternoon. However, this depends upon the parents’ capacity to give the child a conflict free transition.
I give weight to this consideration.
(ii) or any other child, or other person (including any grandparent or other relative.
Separation from [Y] is a matter of significance in this matter.
Dr C observed [Y] with the child. She reported at paragraph 124 as follows:
Later in the day I had the opportunity to observe the father, [Y] and baby [X]. Fortunately, baby [X] was awake at the time when the father and [Y] had arrived. He had also just been fed and changed. The mother had said that she was extremely nervous and worried about running into the father and so I facilitated the changeover and handed baby [X] to the father. During the short observation session, [X] was extremely calm and settled in his father’s care. Mr Spencer had good skills in soothing and comforting [X] and [X] was active and alert throughout the visit. [X] was particularly fascinated by his older half-sibling [Y] and his gaze was fixated on her. [Y] engaged in a beautiful manner with baby [X] and was tender and gentle in her voice, body language and interactions. She had brought a soft toy and played and laughed with him in an extremely mature way. Throughout the visit [Y] was also able to nurse her [X] for a short period of time. At some point [X] began fussing and became a little upset and the father was able to pick him up and comfort him. [X] appeared to be most comforted by being physically rocked and moved. At one point he used a dummy whilst the father was holding him.
In relation to [Y], Dr C in paragraph 187 of her report observed that a sibling bond would be important for the child across his lifetime, but in light of [Y]’s approaching adolescence there may be a narrow window for this to form. In her oral evidence, Dr C agreed in answer to questions by the father’s senior counsel that “a practical window” probably exists in relation to the opportunity to establish his relationship with [Y] “because as she gets older there will be competing things in her life”, and it was less than ideal for the child to see [Y] “for a few days in each school holiday period of some hours” to establish a sibling bond. Dr C said such a sibling bond with a 10 year old sister is important for the child because “they will give one another a sense of identity.” There is a window of opportunity now because at 10, [Y], is “an absolutely delightful child with her brother. She was really kind and sensitive and sweet.” Dr C pointed out she may not be so when she is older, although “there’s no guarantee that that sibling bond would be…an optimal one anyway”. Dr C emphasised however that for an infant child “ ensuring that he’s a psychologically well baby and toddler… if those foundational things are not done or they are messed around with too much then [X] won’t be able to have a good relationship with [Y], because he … will be an anxious child, he will be an irritable sort of child, he may have the constellation of behavioural and psychological problems that children with attachment disturbance have, so…I guess I’m talking about these foundational things as needing to be set in place first.”
Clearly, the relationship with [Y] is dependent on the child forming a secure attachment with the mother. It is also clear that it would be optimum for [Y] to spend time with the child in the immediate future. The proposed orders create a framework within which there is scope for the father to bring about contact and time between [Y] and the child during the window identified by Dr C.
I will assume that any time the child spends with the father on the Region A in accordance with the proposed orders will facilitate the development of a relationship with the paternal grandparents.
The proposed orders create stable and predictable time in Town 1. This will allow continued contact with the maternal grandparents.
The mother sought two Child Support Departure orders, as follows:
That by way of departure the father shall pay periodic child support of $350 per week for the period from the date of these orders until determination of the wife’s application pursuant to S90SM or until October 2019 whichever is the later.
That pursuant to section 124 of the Child Support (Assessment) Act 1989, the father pay by way of non-periodic child support the following:
a. The costs of private health insurance for the child;
b. All gap medical, dental and orthodontic expenses not covered by Medicare or private health insurance.
It can be seen that by the close of the case the mother’s relied upon ss.117 & 124 of the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”). The order sought pursuant to s.117 is in the nature of a periodic order for a defined period. The power to make such an order is found in s.141(1)(g) of the CSA Act. The departure is predicated, in part, upon the existence of the mother’s application for alteration of property interests under s.90SM of the Act.
The father argued that the mother’s application for a departure order did not meet threshold requirements of the applicable legislation. This argument requires some consideration of the objects and purpose of child support legislation.
In Bagala & Bagala [2009] FMCAfam 953 Riethmuller FM (as he then was) succinctly observed at [21]: “The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.” In Yewen & Child Support Registrar & Anor [2014] FCCA 2399 at [79] Judge Brown analysed the legislative history regarding child support. His analysis makes clear that there is a detailed administrative framework to deal with child support applications, with limited involvement of the Court. His Honour observed “departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.”
In adopting this observation McLelland J said in Warwick & Cutler and Anor [2016] FamCA 934 at [59]:
I respectfully agree with the analysis of the legislative history by Judge Brown and, in particular, his Honour’s conclusion that court proceedings regarding administrative child support assessments should be the exception rather than the rule. The fact that, since the enactment of the Tribunals Amalgamation Act 2015 (Cth), this Court no longer has jurisdiction to hear appeals on questions of law in respect to child support strengthens his Honour’s analysis.
In Lesley & Lesley [2015] FamCA 894 McLelland J at [62] adverted to the different nature of the administrative procedure in comparison to an interim court hearing:
In applying to the Court for a departure order, practitioners should be aware of the limited ability of the Court to resolve factual controversy in interim proceedings. These same complications do not exist when making an application for determination under Part 6A of the CSA Act to the Registrar. In dealing with such a matter, the Registrar is acting in an administrative rather than judicial capacity and the procedure adopted is inquisitorial as opposed to adversarial (section 98H(1)(b) of the CSA Act). Moreover, the Registrar is not bound by the rules of evidence (section98H(4)).
Although the hearing was conducted before me as a final hearing with cross examination, not as a truncated interim hearing, the mother’s application was for an interim departure until determination of the wife’s application pursuant to s.90SM of the Act and any property adjustment. The comments of McLelland J pointing out the inherently less adversarial nature of the administrative process are apt and I respectfully adopt them.
Before considering an application under s.117 of the CSA Act, the Court must be satisfied of the matters set out in s 116(1): Saberton & Saberton [2013] FamCAFC 89 at [12]; Warwick & Cutler and Anor (supra) at [61].
S.116(1)(b)(i) of the CSA Act is satisfied because the mother is a party to an application pending before this Court.
S.116(1)(b)(ii) of the CSA Act requires the court to be satisfied “it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.” If this requirement is not satisfied then it cannot be said that s.116(1)(b) of the CSA Act has been satisfied in its entirety, and the Court would not have jurisdiction to hear and determine the application for that reason: Seymour & Seymour [2011] FamCAFC 97 at [84].
In Warwick & Cutler and Anor (supra) at [63], McLelland J cited with approval the following commentary on the expression “"in the special circumstances of the case" made in In the marriage ofGyselman and Gyselman [1991] FamCA 93; (1992) FLC 92-279 at 79,064-5:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case". Whilst it is not possible to define with precision the meaning of that term, as a generality, it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (p 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p 77,202 in a different context, said that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
McLelland J also noted that Turner & Turner and Anor (2016) FLC 93-719 at [108] affirmed the currency of these principles.
In in the Marriage of Sheahan [1993] FamCA 21; (1993) FLC 92-375; 113 FLR 429; 16 Fam LR 437 the Full Court said at p 79,884 that the ''relevant facts of the particular case must be considered to determine whether they constitute special circumstances which ... if not taken into account, would result in injustice or undue hardship to any person''
The determination of whether special circumstances exist requires consideration of all the circumstances of the case: Hides and Hatton (1998) FLC 92-759 at 84,355; Wellesley & Weldon [2013] FMCAfam 283 at [99].
The father argued that the mother has failed to satisfy the requirements for departure as set out in the CSA Act and that, accordingly, the mother’s application should be dismissed. The father submitted that a departure order at this early stage would constitute a significant abandonment of the administrative scheme intended by Parliament to govern child support assessments. The father further submitted that due to the young age of the child it would not be in the interest of both parties to make a departure order. The principle reason is that such an order would take the parties out of the regime intended by Parliament to govern child support. As the authorities make clear, this regime is intended to make court proceedings the exception rather than the rule. If a departure order were to be made at this stage the parties would be compelled to return to Court for any further variation. In light of the child’s young age such a variation is almost inevitable. Rather the parties should rely upon the administrative regime that is available to the mother, including rights of appeal to the Social Security Appeals Tribunal. The father submitted that for these reasons, the mother’s application for a departure order fails at the threshold.
The father also submitted that there has been inadequate disclosure at this stage to establish a factual basis for a departure order.
The mother submitted that the father’s opposition to a departure order is “disingenuous and cynical”. She pointed to the fact that although the father proposed an order for periodic spousal maintenance, he also sought a reduction in periodic spousal maintenance by the amount paid under a child support assessment. If such an order were made, the mother would lose the benefit of any increase in a child support assessment because her spousal maintenance would be reduced by a corresponding amount.
The mother further argued that the Court is appropriately apprised of the financial circumstances of the parties to establish a factual basis for the departure order sought. I do not accept that submission. The evidence of the financial circumstances of the parties is clearly incomplete. Both parties gave evidence of their financial circumstances, and filed financial statements. The evidence filed thus far makes clear that there has been limited disclosure of primary documentation by both parties. There are several obvious areas requiring further investigation. For example, the father’s Financial Statement filed 15 March 2017 gives his weekly income as $346.00, his personal expenditure as $1,481.00 per week and property owned by him having a value of $411,135.00. The evidence of the father indicates that he has interests in trusts or companies with valuable real estate holdings, but he earned an income of $18,024.00 for the year ended June 2016. Nonetheless, he has paid $3,400.00 per month to the mother, and offers to continue such payments. He also covered the lease payments on a Vehicle (omitted) in the sum of $2,613.20 per month between November 2016 and February 2017 and paid for travel and accommodation for the child, the mother and himself when necessary for the child to spend time with him in accordance with the interim orders. Despite giving evidence about her current expenses, the mother has produced little or no primary documentation about those expenses or banking records.
The father was cross-examined about his financial circumstances. He said he had more assets than income. He did not specify his assets, but referred to his Financial Statement. It discloses assets of $411,135.00, made up of receivables of $240,000.00 from (company omitted) Pty Ltd, a Vehicle (omitted) worth $35,000.00 and household contents of $150,000.00. He contended that companies in which he had an interest were worth nothing. They make payments to the father drawn from his loan account, as a repayment of monies owed to him. In the last 12 months he would have been repaid approximately $200,000.00 worth of debt owed to him. He did not agree this was a benefit to him. He conceded that he spent somewhere between $10,000.00 to $20,000.00 per month on a combination of business and personal expenses. He owns 50% of (omitted) Pty Ltd, but attributes no value to this interest in his Financial Statement, rather he says it is not known. He has a contract with (employer omitted) which pays him $200,000.00 per annum.
There is plainly much that needs further explanation, particularly as regards the father’s financial circumstances. I am unable, on the available evidence, to form anything other than a “broad brush impression” of the financial circumstances of the parties.
On the other hand, the Child Support Agency, following its usual statutory pathway including review of decisions, and inquisitorial processes, may be better placed to ascertain the circumstances of the parties.
The mother argued that the child support scheme “would add another level of complexity in what is already highly contentious, highly conflictual litigation” and that the Court is in as good as position as the Child Support Agency to resolve the question. In short there was no benefit to the mother in the matter remaining in the administrative scheme and no prejudice to the father, so it must be in the interest of both parties for the Court to determine the question rather than force to the parties to litigate in another forum. I do not agree.
I accept the submissions of the father concerning the threshold satisfaction required.
There is no present basis to take child support out of the administrative scheme. The mother’s submissions address the question of why it would be in her interest for this Court to consider making a departure order. They do not indicate why it would be in the interest of both the father and the mother for the Court to consider whether an order should be made under s.117 of the CSA Act in relation to the child in the special circumstances of this case. I am not satisfied that it would be. The mother argued, in essence, that the Court should deal with the question because she has placed the question before it. But the very point of the administrative scheme is to avoid exposing the parties to adversarial litigation. It involves a process materially different to court proceedings. If child support remains to be dealt with by the much less formal administrative scheme, the complexity of litigation is lessened not increased. The mother’s submissions cast the debate in terms of whether there is any point in “sending off” the question for determination somewhere else. However, that is not the question. Child support has already been dealt with “somewhere else”, in the administrative scheme. The question is why it should be removed from that scheme. The arguments of the mother do not demonstrate that this case should fall within the exceptions rather than the ordinary rule.
Accordingly, I find that the circumstances are not relevantly “special”. In one sense all cases have facts which are peculiar to them. On the evidence before me, however there are no facts peculiar to this case which set it apart from other cases, or are special or out of the ordinary. On the contrary, the circumstances of this case are within an ordinary range.
In my view it is appropriate for the administrative process to follow the statutory pathway. There is no reason to infer that either party would suffer undue hardship or injustice if they were left to pursue the administrative process, including any administrative review: cf Killam & Levitt [2015] FamCA 52 at [75, [76]. As Stevenson J held in Magnus & Magnus [2015] FamCA 429, it was premature to make an application for a departure order before such time as the wife had utilized “the tools available to the Child Support Agency”.
Therefore s.116 of the CSA Act is not satisfied in its entirety and I do not have jurisdiction to make the departure order proposed by the mother.
This finding renders it unnecessary to express a view on the exercise of discretion or the adequacy of the factual basis for a departure order pursuant to s.117 of the CSA Act.
The father also made a submission that the departure application was fatally flawed because of absence service on the Child Support Registrar at least 28 days before the hearing date in accordance with r.25A.07(1) & (2) Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The mother complained that this point had not been taken during the trial, and caught her by surprise. However, the Court must be satisfied that the basic conditions of procedural fairness, including proper service on non-parties, have been met. The mother bore the onus of establishing service in accordance with the rules.
I received submissions from both parties on the question.
The mother also tendered a copy of a letter from her solicitors enclosing the proposed departure application dated 21 July 2017. This became Exhibit “6”. The letter specifies that the mother relied upon ss.117(1) & 117(2)(c)(1a) & (1b) “of the Family Law Act 1975”. I assume the Child Support (Assessment) Act 1989 (Cth) was meant. The letter states on its face that it was addressed to “Child Support Agency” and was service by email to the following email address: “(omitted)”.
The mother submitted I could infer from the face of the document that it was served on the Child Support Registrar for the purposes of r.25A.07 of the Rules. The mother conceded that the letter did not comply with the requirement for service 28 days prior to the hearing date, invited me to dispense, pursuant to r.1.06 of the Rules, with the requirement for service within that time frame.
Exhibit “6” does not convince me the Child Support Registrar was served at all. The email address seems to be some kind of generic address. It has no self-evident connection to the Child Support Agency, or even the Federal Government. It may or may not be valid. I am unable to make a finding on the available evidence. There is nothing on the face of the document which would indicate it would in the ordinary course have reached the Registrar’s notice, even if received by the Child Support Agency. There was no other evidence before me that contextualised the document.
I am not persuaded that the interests of justice would be served by dispensing with service, although I would be prepared to dispense with the necessity for service at least 28 days prior to the hearing date, in the event service had otherwise been effected.
In Lesley (supra) at [56]ff McLellland J considered r.4.23(1)(c) of the Family Law Rules 2004 (Cth) which is equivalent to r.25A.07. His Honour concluded at [59]:
Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application.
The application for a departure order fails in the absence of the proof of compliance with r.25A.07 of the Rules, especially service upon the Child Support Registrar.
The proposed order under s.124 of the CSA Act is limited to the costs of private health insurance and gap payments for medical, dental and orthodontic expenses.
Bearing in mind the limited financial information presently available, but in particular the fact that the mother is not presently employed, I am satisfied that it would be just and equitable as regards the child and the parents and otherwise proper for child support in the form proposed, being otherwise than in the form of periodic amounts, to be ordered.
However, the application for an order under s.124 required compliance with r.25A.07 of the Rules, especially service upon the Child Support Registrar. As already discussed proof of compliance is absent in this matter. In any event, Exhibit “6” makes no mention of s.124 of the CSA Act. The application fails for these reasons.
Spousal Maintenance
As already noted, the mother has made an application for alteration of property interests pursuant to s.90SM of the Act.
In her final form of proposed orders (Exhibit “5”) the mother also sought lump spousal maintenance in the amount of $30,000.00, and periodic spousal maintenance of $7,361.00 per month.
The father conceded that he is prepared to continue to pay spouse maintenance to the mother in the sum of $3,400.00 per month (less any amount paid by him by way of child support), until the child attains the age of 3 years.
The mother accepted that her application for spousal maintenance can only be, at this stage, an application for an interim order. The father submitted that on a proper understanding of the case law there is no distinct category of maintenance known as interim spousal maintenance. There is only a maintenance order which operates until further order.
It is unnecessary to resolve this question. Orders in the nature of interim spousal maintenance are well recognised. S.90SS(1)(h) gives the court power to make an order for maintenance until further order. I will determine the mother’s application for maintenance as an interim application.
The mother makes her application pursuant to s.90SE of the Act.
The relationship of the parties commenced in 2015 and final separation took place on 2016. It was of short duration, less than 2 years. Since there is a child of the relationship, the requirements of s.90SB(b) of the Act are satisfied.
I adopt the “broader brush” approach to the determination of this interim application, identified by Justice Watts in Osferatu & Osferatu [2012] FamCA 408 at [48] and Stanton & Brook [2012] FamCA 230 at [19].
Generally speaking, after the breakdown of a de facto relationship, if an applicant can establish a need for the maintenance, and it is shown that a respondent has a capacity to pay such maintenance, then the Court may make such order as it considers proper for the provision of such maintenance (s.90SE(1) of the Act).
The Court can only make such an order “as it considers proper” taking into account the factors set out in s.90SF(3) of the Act.
S.90SF of the Act sets out the two-staged process that must be taken into account in relation to any application for maintenance. Firstly, the Court must be satisfied that the so-called ‘threshold test’, set out in s.90SF(1) of the Act, is met; and secondly, as stated above, the Court must consider the list of statutory considerations set out in in s.90SF(3) of the Act in light of the available evidence.
I have already discussed above the existing nature of the evidence of the parties financial circumstances. In accordance with the authorities discussed above, I will take a broader brush approach to the evidence of the parties financial circumstances.
In light of the evidence before me, I accept that the father is reasonably able to maintain the mother. Capacity to meet an order for interim spousal maintenance is not confined to income (Maroney & Maroney [2009] FamCAFC 45 at [56]). The father did not submit he had no capacity to pay interim spousal maintenance. On the contrary his agreement to pay $3,400.00 per month (less any child support assessment amount) conceded capacity.
I also accept that the mother is unable to support herself adequately by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years. This is effectively conceded by the father’s agreement to pay $3,400.00 per month (less any child support assessment amount) by way of spousal maintenance. The Full Court in Mitchell & Mitchell (1995) FLC 92-601 made it clear that the question whether an applicant can support herself “adequately” is not to be determined “by reference to any fixed or absolute standard” or by establishing needs at a “subsistence level” but rather by having regard to the legislative factors. In M & M (2006) 36 FamLR 97 at [31]-[33], the Full Court followed Mitchell (supra), stating “adequately” imported “a standard of living reasonable in the circumstances”. In discussing the principles relating to “adequate”, the Full Court in Brown & Brown (2007) FLC 93-316 confirmed that, where possible, both spouses should continue to live after separation at the level they had enjoyed if this is reasonable, although a lower standard of living may be adequate if financial resources are inadequate to maintain that earlier standard. I further discuss the reasons why the wife cannot support herself “adequately” below in connection with the parties’ standard of living. I accept s.90SF(1) of the Act is satisfied.
I have given consideration to the relevant matters set out in s.90SF(3) of the Act.
The parties are both in good health. I have already discussed above the evidence about their financial resources. The mother’s capacity for gainful employment is attenuated by her responsibilities to care for the child. Her earning capacity has been interrupted by the birth of the child. The father continues to be capable of earning income in his usual employment. The father has commitments to maintain [Y]. The mother receives some modest financial support from her parents.
Whilst together the parties enjoyed a well-furnished standard of living. They travelled overseas, stayed at resorts in (location omitted) and often ate out at high end restaurants. The father can maintain the same standard of living. The mother cannot without spousal maintenance.
The central questions are therefore the amount of spousal maintenance and whether it should take the form of a lump sum, periodic payments or a combination of both.
The mother seeks a lump sum of $30,000.00. In cross-examination the father said this would be difficult for him to pay. He also gave answers which conceded he kept up to $20,000.00 to $30,000.00 in cash in his safe at home during 2017.
The reason for a lump sum order, in addition to, or instead of, periodic maintenance, received only perfunctory attention in submissions by the mother. The father submitted that there was no evidentiary basis for such an order. I take account of the authorities relating to lump sum spousal maintenance such as Vartikian & Vartikian (No.2) (1984) FLC 91-587, Clauson & Clauson (1995) FLC 92-595 at 81,908 and Vautin & Vautin (1998) FLC 92-827 at 85,423). I agree with the submissions of the father in this respect.
In her Affidavit of 30 June 2017, the mother gave evidence at paragraphs 79 to 81 about her employment and accommodation plans if she remains in Town 1. As already noted above, it is now common ground that she will do so until the child is at least 3 years old. In summary, she says she wishes to remain a full time mother until the child is 2 years and 9 months, and then return to casual (employment omitted) in Town 1. She desires to find suitable accommodation in or around her parents’ home and local schools. She gives evidence that she will likely have to pay around $500.00 per week in rent.
The father criticized this evidence as a plan without detail or texture. I do not agree.
In her Further Amended Financial Statement filed 24 July 2017, the mother sets out weekly expenses totalling $2,479.00. This figure includes the mortgage costs, rates and levies and insurance for her property at Property A.
The figure of $2,479.00 also included the costs of supporting herself and costs for the child. The mother referred to Drysdale & Drysdale [2011] FamCAFC 85 at [36]-[39] in support of her argument that a failure to differentiate between expenses of the mother and those of the child would not be fatal to an interim spousal maintenance claim. I accept that the weight of authority supports such an approach.
Against the mother’s weekly expenses totalling $2,479.00 is set income of $1,517.64. The shortfall is $962.00 (rounded) per week or $4,167.00 per month ($50,024.00 per annum).
The father subjected the information in the mother’s financial statement to critical scrutiny. He submitted that many of the items there specified were baseless or overstated. He submitted that the evidence of the mother’s reasonable needs was inadequate to make case for maintenance in excess of the amount currently paid by the father.
The mother made no attempt in submissions to justify the specific figure of $7,361.00 per month claimed in her final minute of proposed orders.
I have taken account of the child support assessment in favour of the mother in determining the question of maintenance, as required by s.90SF(3)(q) of the Act. However, where the question of child support is left with the administrative scheme, in my view there is no obvious justification for diminishing interim spousal maintenance by the amount of any child support assessment. As the mother submitted, if such an order was made the mother would lose the benefit of any upward adjustment of the child support assessment. Even though some of the expenses used by the mother to justify spousal maintenance include expenses for the child, child support and spousal maintenance are distinct avenues of support.
There has been no final property settlement between the parties at this stage. As I have already discussed, the evidence of the parties’ financial circumstances is incomplete. It is not possible to take anything more than a “broader brush” approach. Taking that approach, in light of the statutory considerations, I am satisfied that $3,400.00 per month is not adequate. I have concluded that interim spousal maintenance in the circumstances of this case should be increased to $4,167.00 per month and then $6,167.00 when the mother commences paying rent. This amount will cover the weekly shortfall in the mother’s expenditure and allow her to house herself in rental accommodation in Town 1 until the child is at least 3 years’ old. It will not be reduced by any child support assessment. I take account of the possibility that the mother may return to employment when the child is 2 years and 9 months old. However, this is not certain. This interim spousal maintenance will be payable until the child reaches 3 years of age.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am is of the view that the orders as set out at the commencement of these reasons are in the best interests of the child and accordingly, will so order.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 15 December 2017
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