Stirling and Dobson
[2011] FMCAfam 52
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STIRLING & DOBSON | [2011] FMCAfam 52 |
| CHILD SUPPORT – Special circumstances – where children have an extremely high standard of living – where both parents are in a position of extreme wealth – where father asserts that the children's lifestyle is lavish and unnecessary – where the actual expenses incurred by the mother in maintaining the children are far in excess of whatever allowance the child support scheme makes for the costs of children – where father concedes that he is able to meet those expenses if ordered to do so – consideration of overall costs incurred by both parties in maintaining the children – apportionment of those costs on the basis of each party's financial position. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Carpenter and Lunn (2008) FamCAFC 128 Chappell (2008) FamCAFC 143 Gyselman(1992) FLC 92-279 Hogan (1986) FLC 91-714 I v I (No 2) (1996) FLC 92-625 Kelly v Kelly(No 2) (1981) FLC 91-108, Melville & Hunt [2006] FMCAfam 238 Penfold (1980) FLC 90-800 Ross v McDermott (1998) 23 Fam LR 613 |
| Applicant: | MS STIRLING |
| Respondent: | MR DOBSON |
| File Number: | MLC9633 of 2007 |
| Judgment of: | Walters FM |
| Hearing dates: | 22–26 & 29 March; 27 September 2010 |
| Date of Last Submission: | 27 September 2010 |
| Delivered at: | Melbourne (In Chambers) |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brown SC |
| Solicitors for the Applicant: | Middletons |
| Solicitors for the Applicant as of 12 November 2010: | Gadens Lawyers |
| Counsel for the Respondent: | Mr Bartfeld QC and Mr Puckey |
| Solicitors for the Respondent: | Taussig Cherrie & Associates |
| Solicitors for the Respondent as of 1 October 2010: | Unrepresented |
ORDERS
IT IS ORDERED THAT:
Pursuant to section 117 of the Child Support (Assessment) Act 1989, and subject to paragraph 2 below, there be a departure from all relevant administrative assessments of child support payable by the father to the mother for the children [X] born [in] 1996 (“[X]”), [Y] born [in] 1998 (“[Y]”) and [Z] born [in] 2000 (“[Z]”) as follows:
(a)In relation to [X]:
(i)For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [X] be set at $21,060 (being $1,755 per calendar month); and
(ii)For the period from 1 January 2011 to 14 October 2014 (being the date upon which [X] attains the age of 18 years), the annual rate of child support for [X] be set at $26,832 (being $2,236 per calendar month).
(b)In relation to [Y]:
(i)For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Y] be set at $21,060 (being $1,755 per calendar month); and
(ii)For the period from 1 January 2011 to 14 December 2016 (being the date upon which [Y] attains the age of 18 years), the annual rate of child support for [Y] be set at $26,832 (being $2,236 per calendar month).
(c)In relation to [Z]:
(i)For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Z] be set at $21,060 (being $1,755 per calendar month); and
(ii)For the period from 1 January 2011 to 19 May 2018 (being the date upon which [Z] attains the age of 18 years), the annual rate of child support for [Z] be set at $26,832 (being $2,236 per calendar month).
The annual rate of child support payable by the father to the mother for each of the said children pursuant to paragraph 1 above will increase from 1 January each year (commencing 1 January 2012), in accordance with variations in the consumer price index (all groups level) for Melbourne.
Pursuant to section 124 of the Child Support (Assessment) Act 1989, and subject to paragraphs 4, 5 and 6 below, the father pay additional child support to the mother for the said children by way of lump sum payments as follows:
(a)In relation to [X]:
(i)Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [B] School, Melbourne, for a boy in the same academic year as the academic year in which [X] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year ("[X]'s notional school fees").
(ii)
[X]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by
28 February 2011 instead of 31 January 2011.
(b)In relation to [Y]:
(i)Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [B] School, Melbourne, for a boy in the same academic year as the academic year in which [Y] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year ("[Y]’s notional school fees").
(ii)[Y]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by 28 February 2011 instead of 31 January 2011.
(c)In relation to [Z]:
(i)Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [F] School, Melbourne, for a girl in the same academic year as the academic year in which [Z] would have been enrolled had she been living in Melbourne and attending [F] School for the whole of that calendar year ("[Z]'s notional school fees").
(ii)
[Z]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by
28 February 2011 instead of 31 January 2011.
For the purposes of paragraph 3 above, the expression "annual tuition fees" means the annual tuition fees identified by the relevant schools (in each school's prospectus or other published summary of fees and charges) as tuition fees or charges for the relevant year, and does not include –
(a)any other fees or charges that might be imposed by the relevant schools for children to attend them (including, but not limited to, school levies or building fund contributions);
(b)uniforms, books and stationery, computer hardware and software, school excursions and compulsory travel; school lunches and school based extra curricular activities; and
(c)any other fees or charges associated with school expenses of an optional or voluntary nature.
The lump sum child support ordered to be provided by the father in paragraph 3 above shall terminate in the following circumstances:
(a)The father's obligation to pay [X]'s notional school fees shall terminate upon [X] completing his secondary education in the United Kingdom (or elsewhere), or upon [X] attaining the age of 18 years, whichever occurs first.
(b)The father's obligation to pay [Y]'s notional school fees shall terminate upon [Y] completing his secondary education in the United Kingdom (or elsewhere), or upon [Y] attaining the age of 18 years, whichever occurs first.
(c)The father's obligation to pay [Z]'s notional school fees shall terminate upon [Z] complete in her secondary education in United Kingdom (or elsewhere), or upon [Z] attaining the age of 18 years, whichever occurs first.
The lump sum child support ordered to be provided by the father in paragraph 3 above is not to be credited against the father’s liability for periodic child support as provided for in paragraph 1 above, and is to be paid by the father in addition to the said periodic child support.
The orders made in this Court on 27 September 2010 be varied by adding a further subparagraph to paragraph 5 of the Minute attached to the said orders as follows:
(c) The father and the mother each pay one half of the said children’s airfares pursuant to paragraphs 4(c) and (d), such airfares to be in Economy class
Each party pay his/her own costs of and incidental to these proceedings.
All extant applications otherwise be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Stirling & Dobson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC9633 of 2007
| MS STIRLING |
Applicant
And
| MR DOBSON |
Respondent
REASONS FOR JUDGMENT
Preamble
In order to simplify these Reasons, and without any disrespect to the parties, I propose to refer to –
a)the applicant wife (Ms Stirling) as "Ms Stirling";
b)Ms Stirling's husband (Mr Stirling) as "Mr Stirling";
c)the respondent husband (Mr Dobson) as "Mr Dobson";
d)Mr Dobson's partner, Ms R, as "Ms R"; and
e)where it is necessary to distinguish between the children –
i)Ms Stirling and Mr Dobson's children, [X], [Y] and [Z], as "the Dobson children"; and
ii)Ms Stirling and Mr Stirling's children, [L] and [C], as "the Stirling children".
Although the law now refers to a child “spending time” with a person with whom the child does not live,[1] I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, s.64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
Unless otherwise indicated, all statements of fact in these Reasons comprise findings of fact.
Background
Mr Dobson was born in 1953. He is now 57. He is currently [occupation omitted] of [A].
Ms Stirling was born in 1967. She is now 43. She describes her occupation as "homemaker and parent".
Mr Stirling was born in 1953. He is currently 57.
I am not aware of Ms R's date of birth. She is now aged 27 or 28.
Ms Stirling and Mr Dobson married [in] 1995. They separated (finally) in February 2004 and were divorced in October 2005.
Mr Dobson’s marriage to Ms Stirling was his second marriage. He has three adult children from his first marriage.
Ms Stirling and Mr Dobson have three children:
a)[X], born [in] 1996;
b)[Y], born [in] 1998; and
c)[Z], born [in] 2000.
Ms Stirling and Mr Stirling married [in] 2005. They have two children:
a)[C], born [in] 2005; and
b)[L], born [in] 2007.
Mr Dobson and Mr Stirling were previously work colleagues at [U], where Mr Stirling was [occupation omitted]. Mr Dobson was employed under him.
Mr Dobson was retrenched from [U] in January 2001. He then worked in various roles, including as an [omitted], and as [omitted] of [Q] (a company described on its website as "[omitted]"). In August 2004, he joined [A] (which he had helped form). He is still the [omitted] of [Q].
In January 2002, Mr Dobson, Ms Stirling and the Dobson children commenced living at Property N, ("Property N"). Ms Stirling and
Mr Dobson had purchased the home from Ms Stirling's parents.
According to Mr Dobson, his relationship with Ms Stirling began to deteriorate in or about August 2003. As indicated above, Ms Stirling and Mr Dobson eventually separated in February 2004.
Ms Stirling and Mr Stirling commenced a relationship towards the end of 2003. Shortly afterwards, Mr Stirling relocated to Switzerland, where he was employed as [occupation omitted] for [U].
Ms Stirling wanted to join Mr Stirling in Switzerland. In early 2004, she commenced proceedings in the Family Court seeking orders that would permit her to take the Dobson children with her to Switzerland. Mr Dobson eventually agreed to Ms Stirling relocating to Switzerland with the children, and they travelled there in June 2004.
Final orders were made by consent in the Family Court on 26 May 2004 ("the 2004 Orders"). The 2004 Orders dealt with parenting issues and property settlement. They also included a provision that
Mr Dobson would pay (or cause to be paid) to Ms Stirling the sum of $5,000 per calendar month by way of spousal maintenance. This payment was to continue until Ms Stirling's departure for Switzerland.
The 2004 Orders also provided as follows:
a)Ms Stirling and Mr Dobson were to have "joint responsibility for making decisions in relation to the long term care, welfare and development" of the Dobson children;
b)the Dobson children were to live with Ms Stirling, save for the times that Mr Dobson was to have contact with them (in Switzerland, or elsewhere in Europe, and in Australia); and
c)with effect from 4 June 2004, Ms Stirling was to be at liberty to take the Dobson children with her to Switzerland to live.
The 2004 Orders were relatively detailed, but the detail is now of little significance.
At the same time as Ms Stirling and Mr Dobson negotiated the agreement reflected in the 2004 Orders, they also negotiated and entered into a Child Support Agreement ("the Agreement"). The Agreement is dated 24 May 2004. It set out the child support arrangements that were to apply while the Dobson children lived in Switzerland. It also purported to set out the child support arrangements that were to adhere if and when Ms Stirling and the children returned to live in Australia.[2]
[2] The Agreement comprises annexure AS13 to Ms Stirling's trial affidavit (at page 121 of the document).
In broad terms, the Agreement stated that Ms Stirling would not seek periodic child support from Mr Dobson while she and the children were living overseas, that she would be responsible for educational and health expenses for the children during that time, and that each would meet the costs of the children's day to day expenses during the periods that the children were in their respective care. Given that the children actually spent very little time in Mr Dobson's care, the effect of the Agreement was that Mr Dobson was obliged to pay very little by way of financial support for the Dobson children whilst they lived overseas.
There were other provisions in the Agreement, which Mr Dobson summarised as follows:[3]
Whilst the Agreement was to terminate upon the children returning to live in Melbourne on a permanent basis … , it also contained a recital … which stated our intentions in the event that the children returned to live permanently in Melbourne, namely that if there was no material change to my financial circumstances, I would pay periodic child support to (Ms Stirling) at the top rate prescribed by the Child Support Agency in addition to the children's educational and medical expenses.
[3] See paragraph 41 of Mr Dobson's affidavit sworn 15 March 2010
Between June 2004 and July 2008, Ms Stirling, Mr Stirling, the Dobson children (and, after they were born, the Stirling children) lived in Switzerland.
There were significant problems surrounding Mr Dobson's contact with the children while they lived in Switzerland. Without minimising those problems (and without making any findings as to who may have been responsible for them), the reality is that they are now of little significance.
Mr Dobson and Ms R met in approximately February 2007, while
Ms R was working at [A]. They commenced a relationship in 2008 and have lived together since August of that year. They live in Mr Dobson's apartment in [suburb omitted].
On 1 July 2008, Ms Stirling and Mr Stirling (and the Dobson children and the Stirling children) returned to Melbourne, after Mr Stirling relinquished his position at [U]. They commenced living in Property N. [X] and [Y] were enrolled at [B] School, and [Z] was enrolled at [F] School. Pursuant to his understanding of the Agreement, Mr Dobson commenced paying periodic child support to Ms Stirling for the Dobson children at the top rate then prescribed by the Child Support Agency. He also commenced paying the children's educational (and extra curricular) and medical expenses.
Shortly before Ms Stirling and Mr Stirling (and all the children) returned to Melbourne, she commenced proceedings in this Court to vary the Agreement. The initiating application was filed on 29 April 2008.
On 14 August 2008, Mr Dobson filed a response. He sought that
Ms Stirling's initiating application (seeking to vary the Agreement) be dismissed. He also sought orders relating to contact with the children.
On 12 September 2008, Ms Stirling filed a reply. At that stage, she agreed to the majority of parenting orders that Mr Dobson had sought in his response.
On 20 October 2008, the proceedings were listed for trial.
On 18 June 2009, Ms Stirling filed an amended reply. The only order she proposed relating to contact between Mr Dobson and the children was for the children to spend time with Mr Dobson was "at times to be agreed".
Although 22 June 2009 was supposed to be the first day of the trial, the hearing did not proceed. Mr Dobson's counsel (Mr Bartfeld QC) argued that the Court did not have jurisdiction to vary the Agreement because it had not been registered with the Child Support Agency ("CSA"). Mr Bartfeld also argued that the Agreement had terminated.
It is unnecessary to provide further detail regarding the hearing on
22 June 2009.
Eventually, the CSA issued administrative assessments of child support. The assessments were issued on 14 August 2009. One related to the period from 13 July 2009 to 13 October 2009; the other related to the period from 14 October 2009 to 12 October 2010. According to the former, Mr Dobson was obliged to pay child support at the rate of $648.83 per week (or approximately $216 per child per week). According to the latter, Mr Dobson was obliged to pay child support at the rate of $708.28 per week (or approximately $236 per child per week)
The proceedings came before me again on 7 September 2009. At the hearing, I was advised that the CSA had informed the parties that it would not accept the Agreement for registration. Directions were then made for the purpose of sending the matter for trial on 22 March 2010.
Conciliation conferences were held on 7 September 2009 and
15 September 2009. They were unsuccessful.
On 21 September 2009, the CSA advised the parties in writing that the Agreement would not be accepted for registration.
In November 2009, Ms Stirling's lawyers wrote to Mr Dobson's lawyers advising that Ms Stirling wished to relocate to the United Kingdom (with the children) in mid 2010.
On 14 December 2009, Ms Stirling filed an amended initiating application seeking permission to remove the children from Australia and to relocate with them to the UK. She also sought orders in relation to child support. She had, in effect, abandoned her original application (filed 29 April 2008) seeking that the Agreement be registered with the CSA (and then varied) in favour of a fresh application for orders departing from all relevant administrative assessments of child support.
On 25 February 2009, Ms Stirling filed a further amended initiating application. In it, she sought more detailed orders in relation to child support.
Ms D (who is a psychologist and social worker, and an experienced family report writer) saw Ms Stirling, Mr Stirling, Mr Dobson and the Dobson children in mid February 2010 for the purpose of the preparation of a family report. Her report is dated 9 March 2010. It is attached to her affidavit sworn 16 March 2010.
The family report is troubling. None of the adults (Ms Stirling, Mr Stirling and Mr Dobson) is cast in a positive light. Indeed, the Dobson children – two of whom said they "hate" Mr Dobson, while the third said that he wished to never see Mr Dobson again – are not cast in a positive light either. Ms D wrote:
The children's demonstration of polite formality, standing up to shake the psychologist’s hand and introducing themselves, quite frankly stands in stark contrast to their almost humiliating disrespect of their father.
One can only speculate where (the Dobson children) have come to learn such behaviour in light of the little time they have spent with (Mr Dobson).
She continued:
(Mr Dobson), possibly in the hope of a better relationship with (Ms Stirling), did not assert himself in his role as a father … during 2009. Neither did he do so from 2004 to 2008.
While neither parent would deliberately place their children at risk, the children have developed a professed hatred and demonstrated disrespect for their father. The children's current entrenched position is likely to be more representative of (Ms Stirling's) unresolved issues. She has wittingly or unwittingly involved the children in the adult problems.
She has neither consulted (Mr Dobson) on the relocation (to the UK) nor considered his position. The children know about the proposed relocation; they have visited the new home and schools and, of course, they want to go.
At this point, it is not possible to suggest how to repair the family relationships, as there seems to be no commitment to doing so. The children do not want to remain in Melbourne. They will blame (Mr Dobson) if they cannot live in England and there seems little likelihood of the children establishing a good relationship with (Mr Dobson) across the world.
It is respectfully suggested that (Ms Stirling) may need to demonstrate to the Court how she will break the impasse for the children; that is, beyond what she claims is her present level of encouragement of them to see their father, which has clearly been spectacularly unsuccessful to date.
On 15 March 2010, Mr Dobson filed an amended response. In broad terms, he opposed Ms Stirling's application for permission to take the children to the UK to live (but sought alternative orders if such permission were to be granted by the Court). He also sought orders in relation to child support.
The trial commenced on 22 March 2010. It continued on 23, 24, 25 and 26 March 2010.
On 26 March 2010, it was agreed that the proceedings should be adjourned to enable all relevant parties to engage in reportable family therapy with Dr N, Clinical Psychologist. Ms Stirling and Mr Stirling agreed to defer their plans to depart for the UK until the family therapy had run its course. The expressed hope of all parties was that the family therapy might lead to an improvement in the emotional health of the Dobson children and, perhaps, a normalisation of their relationship with Ms Stirling and Mr Dobson.
On 29 March 2010, the proceedings were adjourned to 1 September 2010 for a one day hearing. That date was later changed to 27 September 2010.
Between April and August 2010, Dr N saw Ms Stirling and Mr Stirling, Mr Dobson and Ms R and the Dobson children for reportable family therapy. Pursuant to Dr N's report dated 23 August 2010, the "goals of treatment" were as follows:
… to assist the children to develop a relationship with their father, manage their anxieties and insecurities, challenge their thinking and provide psychoeducation to their parents.
Many details of the family therapy undertaken with Dr N are not relevant for present purposes. In contrast to Ms D's report, Dr N's report was relatively complimentary of both Ms Stirling and Mr Dobson. For example, she wrote that:
a)Ms Stirling –
i)attended every appointment with the children and requested additional appointments to address ongoing issues;
ii)took advice well, and seemed candid and open about her lapses in judgment;
iii)provided opportunities for the children to see Mr Dobson, encouraged their attendance with him and took a flexible and cooperative approach with Mr Dobson in changing arrangements; and
iv)seemed to genuinely appreciate the children's needs for a better relationship with their father; and
b)Mr Dobson –
i)took a conscientious, intelligent and sensitive approach to rebuilding his relationship with the children; and
ii)accepted advice about the children's needs very well.
Dr N was less complimentary when writing about Ms R, but accepted that, in many ways, Ms R has been in an impossible position (in that she is likely to be criticised by the children irrespective of what she does).
Somewhat surprisingly, and in spite of the fact that she had seen him on two occasions, Dr N made no attempt to describe her impressions of Mr Stirling – whose expressed intentions and possible reactions permeated almost every aspect of the report (and, ultimately, its recommendations).
Dr N's report reveals the following:
a)When it became clear that the further hearing of the proceedings was likely to be adjourned from September 2010 to November 2010, Mr Stirling informed Dr N that he was intending to relocate to the UK with [C] to allow him to commence school there, without waiting for the outcome of the case.
b)Ms Stirling gave the impression of feeling a great deal of stress over trying to keep her family together (which is clearly a reference to the family comprising herself and Mr Stirling, with the Dobson children and the Stirling children), and being concerned that "(Mr Stirling’s) patience might run out".
c)One of the main psychological factors underlying the dispute between Ms Stirling and Mr Dobson (in the broadest sense), and the children's problems in their relationship with Mr Dobson, is the children's fears that their family (comprising the Dobson children, together with Ms Stirling and Mr Stirling and the Stirling children) "will be destroyed or changed if (Mr Stirling) decides to move to England with one or both of (the Stirling children) irrespective of the outcome of the court case".
d)The risk that Mr Stirling may relocate to the UK without the Dobson children "created tensions that contribute to (the Dobson children's) rejection of their father".
e)The Dobson children "appear to have some fears about how (Ms Stirling) might react to any ultimatum by (Mr Stirling) to leave, and they are fearful of her responses and feel for her dilemmas".
f)The potential for Mr Stirling to leave for the UK without the Dobson children has "raised hidden themes of the children's perceived differences between their relationship and standing with (Mr Stirling) and his relationship with (the Stirling children), creating overt divisions where there were none previously".
Dr N summarised the difficult dynamic created (or effectively created) by Mr Stirling's attitude as follows:
(The Dobson children) are very protective of their mother and have fears that their mother's relationship with (Mr Stirling) will be negatively affected by the stress of the court case, and that if (Mr Stirling's) ultimatum to relocate anyway is carried out this might cause the end of their family as they know it. They appear to fear that their mother will leave them too, or that this will cause the destruction of the relationship between their mother and (Mr Stirling). It is not surprising that this provides a strong counterweight to the children feeling positive towards (Mr Dobson). It is also a disincentive for them to allow themselves to forgive him for past perceived slights. They hold (Mr Dobson) to blame for the situation.
This was not the first time that Mr Stirling had made such a threat. In his affidavit sworn 23 February 2010, he deposed as follows:[4]
Regardless of whether or not this Court grants (Ms Stirling) liberty to relocate (the Dobson children) to the United Kingdom, I will move there to pursue employment opportunities in June 2010.
[4] At paragraph 17
Ms Stirling said much the same thing:[5]
Mr Stirling has made it clear to me that regardless of whether or not this Court grants me liberty to relocate the children to the United Kingdom, he will move to United Kingdom to pursue employment opportunities. Mr Stirling has also expressed a strong preference that (the Stirling children) be raised in United Kingdom.
[5] See paragraph 110 of Ms Stirling’s trial affidavit
A similar statement of intent had been conveyed to Ms D. Indeed, Mr Stirling told Ms D at the beginning of his interview with her that if the Court did not allow the Dobson children to relocate, then it would be "splitting the family".
During the course of his cross examination, Mr Stirling attempted to distance himself from these statements. He was unsuccessful in that regard and was, generally speaking, an unimpressive witness.[6] I find that the statements referred to above were made for the purpose of putting pressure on the Court to allow Ms Stirling to remove the Dobson children from Australia and relocate with them to the UK. The effect of the statements, however, was to place Ms Stirling and the Dobson children under considerable emotional and psychological pressure (as reflected in Dr N's report).[7] To that extent, I find that Mr Stirling's actions in making the threat to which I have referred were thoughtless and insensitive. They were also manipulative, and, unfortunately, reflect poorly on him in his role as Ms Stirling's husband and stepfather to the Dobson children.
[6] During cross examination, Mr Bartfeld suggested to Mr Stirling that he has "an overbearing personality". Mr Stirling responded: "No, I think I’m deeply charming". Although the Court made light of the comment at the time, the fact of the matter is that Mr Stirling did not present as "deeply charming".
[7] During cross examination, Ms Stirling was confused and concerned as to whether Mr Stirling would or would not ultimately decide to stay in Australia in the event of the Court restraining her from removing the Dobson children from this country. She recognised that Mr Stirling would likely want to take the Stirling children with him to the UK, and conceded that she would resist such an action on his part. In other words, she would not leave the Dobson children in Australia and travel to the UK to live with Mr Stirling and the Stirling children. Instead, she would take steps to ensure that all the children remain together (if necessary, in Australia). She recognised the possibility that this could lead to a breakdown in her relationship with Mr Stirling, and possibly divorce. See, for example, 22 March 2010 transcript at pages 66-7; see also 23 March 2010 transcript at pages 2-3.
Dr N's strong recommendation was to the effect that Mr Dobson should agree to the children's relocation as soon as possible. In her opinion, such an action on Mr Dobson's part "might be the most powerful message that he could give them, and paradoxically provide an even stronger base for his relationship with them."
In late August 2010, Mr Dobson acted on Dr N's recommendation and consented to the children relocating to the UK. Ms Stirling and the children left Australia on 1 September 2010.
The trial resumed on 27 September 2010. By that time, most parenting issues had been resolved, and the primary dispute between Ms Stirling and Mr Dobson related to the issue of child support
In due course, final parenting orders were made – by consent – on
27 September 2010 ("the Final Parenting Orders"). In broad terms, they provide as follows:
a)Ms Stirling and Mr Dobson are to have equal shared parental responsibility for the Dobson children;
b)the children are to live with Ms Stirling, and she is permitted to relocate with them to the UK on a permanent basis;
c)Mr Dobson is to spend block periods with the children during school holidays, and at other times as agreed;
d)Mr Dobson is also to have telephone contact with the children on at least two occasions per week;
e)Ms Stirling must –
i)do her best to facilitate regular telephone and other electronic contact between Mr Dobson and the children;
ii)
authorise the children's schools in the UK to provide
Mr Dobson with information regarding the children's schooling, and other information normally obtained by parents;
iii)arrange for the children to be enrolled at schools to be agreed upon between her and Mr Dobson;
iv)ensure that Mr Dobson is recorded as the children's guardian (and that the children's schools have Mr Dobson's contact details);
v)
not change the children's schools without first consulting
Mr Dobson and obtaining his agreement;
vi)not change the children's surname from "Dobson";
vii)keep Mr Dobson advised of medical issues relating to the children, and consult with Mr Dobson in relation to more serious medical problems;
viii)consult with Mr Dobson in relation to the children's religious upbringing; and
ix)inform Mr Dobson of any intention that she may have to travel outside the UK with the children;
f)Ms Stirling and Mr Dobson (and their servants and agents) must not –
i)discuss matters relating to the legal proceedings in the presence or hearing of the children (although they are permitted to discuss the terms and mechanics of the Final Parenting Orders); or
ii)denigrate each other in the presence or hearing of the children (or permit anyone else to engage in such behaviour in the children's presence or hearing).
One parenting order (or, perhaps, a financial order in the guise of a parenting order) remained in dispute. Paragraph 4(c) of the Minute of Proposed Consent Orders provided for Mr Dobson to have contact with the children for three weeks during the English summer school holiday period in odd numbered years (such contact to occur in Australia or elsewhere as agreed between the parties). Paragraph 4(d) of the Minute provided for Mr Dobson to have contact with the children for two weeks during the Christmas school holiday period in 2011/12 (and in each alternate year thereafter), such contact to occur in Australia. Ms Stirling and Mr Dobson could not agree upon the funding arrangements for the travel associated with these two contact periods. Ms Stirling sought an order to the effect that Mr Dobson be responsible for half of the children's (economy) airfares for the contact periods (and that she be responsible for the other half). Mr Dobson sought an order to the effect that Ms Stirling be responsible for the whole of the children's (economy) airfares.
Paragraphs 4(c) and (d) of the Minute of Proposed Consent Orders now comprise paragraphs 4(c) and (d) of the Final Parenting Orders.
Thus, the hearing on 27 September 2010 dealt almost exclusively with child support issues. After hearing both counsel (Mr Brown SC for
Ms Stirling and Mr Bartfeld QC for Mr Dobson), I adjourned the proceedings to a date to be fixed for the delivery of judgment.
Ms Stirling, Mr Stirling, the Dobson children and the Stirling children are now living at [M], which is a historic estate in [H] in the UK. [X] and [Y] attend [E] School as "weekday boarders". [Z] attends [P] School. Both schools are in [H].
Ms Stirling describes [M], and [E] School, at pages 28 to 32 of her trial affidavit. Photographs of [M] are attached to the affidavit. It is a huge and impressive property. The house contains 15 bedrooms, as well as formal and informal living spaces. The estate on which the house is located comprises 85 acres.
Documents relied upon
Ms Stirling relied upon the following documents:
a)her affidavit sworn 25 February 2010 (which I shall describe as her trial affidavit);
b)her financial statement sworn 11 September 2008; and
c)affidavit of Ms K sworn 17 June 2009 (which I shall describe as "the Ms K affidavit").
Mr Dobson relied upon the following documents:
a)his affidavit sworn 15 March 2010 (which I shall describe as his trial affidavit);
b)his financial statement sworn 15 March 2010;
c)Ms R's affidavit sworn 15 March 2010; and
d)Ms D's affidavit sworn 16 March 2010 (attaching her report dated 9 March 2010).
Mr Stirling's financial statement sworn 22 March 2010 comprises exhibit H3.
Issues in dispute
The only issues remaining in dispute between Ms Stirling and
Mr Dobson relate to:
a)child support;
b)the question of who should pay for the children's airfares for the block periods that they are to spend with Mr Dobson in Australia (or elsewhere by agreement) during the English summer school holiday period (in each year) and the Christmas school holiday period (in alternate years); and
c)costs
Ms Stirling sought the following child support orders at the commencement of the hearing on 27 September 2010:
1. Pursuant to section 118 of the Child Support (Assessment) Act 1989 ("the Assessment Act"), the periodic rate of child support payable by Mr Dobson for each of the Dobson children be varied by setting the weekly rate of child support at A$650 per child per week (being A$33,800 per child per annum).
2. Pursuant to section 124 of the Assessment Act, Mr Dobson pay to Ms Stirling additional child support for the children in a form other than periodic support by paying the following:
a. private education expenses for the Dobson children at such school or schools as they may attend in the UK, comprising:
i. fees;
ii. levies;
iii. uniforms;
iv. books and stationery;
v. computer hardware and software;
vi. school excursions and compulsory travel; and the
vii. school based extra curricular activities;
b. private health insurance at the current rate;
c. all non rebatable hospital, medical, dental, orthodontic, prescribed pharmaceutical and optical expenses; and
d. ambulance cover.
The child support orders sought by Mr Dobson at that time were as follows:
1. Mr Dobson pay periodic child support to Ms Stirling for the children at the maximum rate prescribed by the CSA pursuant to an administrative assessment of child support from time to time.
2. Pursuant to section 124 of the Assessment Act, Mr Dobson pay or cause to be paid the following non periodic expenses for the children:
a. private educational expenses for the Dobson children at [B] School and [F] School (or such other schools as may be agreed between the parties), comprising:
i. fees;
ii. levies;
iii. reasonable uniform items (from the school uniform shop);
iv. prescribed books and stationery;
v. computer hardware and software as per school requirements; and
vi. school excursions and compulsory travel;
b. private health insurance at the current rate;
c. all non rebatable hospital, medical, dental, orthodontic, prescribed pharmaceuticals and optical expenses subject to Mr Dobson’s prior consent to major non emergency treatment being obtained;
d. ambulance cover; and
e. extra curricular activities subject to Mr Dobson’s prior consent having been obtained.
In essence, Ms Stirling sought orders to the effect that Mr Dobson pay child support for the Dobson children at the rate of $650 per week per child, and that he meet their school fees and all other expenses associated with their education, extra curricular activities and health issues. She sought orders imposing these obligations on Mr Dobson from the date of her initiating application (being 29 April 2008), or perhaps from 14 December 2009 (which is the date upon which she filed her amended initiating application). She sought orders to the effect that Mr Dobson make these payments irrespective of whether the children live in Australia or in the UK. In other words, she sought orders (for example) to the effect that Mr Dobson pay the children's Australian school fees and associated expenses for the period that they lived in Australia and the UK school fees and associated expenses with effect from the time that they relocated to [H].
Mr Dobson, on the other hand, sought orders to that effect that the child support that he is to pay for the children be capped at the maximum rate (for three children) prescribed by the CSA from time to time, and that the school fees and associated expenses be capped at the amount that he would have had to pay for the children if they were being educated at private schools in Australia (relevantly, [B] School and [F]). He opposed any backdating of his child support obligations to the date of Ms Stirling's initiating application (or, indeed, to the date of her amended initiating application).
During the hearing on 27 September 2010, however, the parties conceded that it would be appropriate for the Court to approach the competing child support applications on the (hypothetical or notional) basis that the children are still living in Australia. Put another way, it was conceded that the Court should proceed on the (fictional) basis that the Dobson children will continue to attend [B] School and [F], and that the school fees that Mr Dobson should pay are those that he would have had to pay if the children had continued to attend those schools. Similarly, it was conceded that the overall costs of maintaining the three children (excluding school fees) should be ascertained on the evidence that was available in relation to those costs while the children were living in Australia. It follows that the Court need not concern itself with the actual costs of educating the children at the schools that they currently attend in the UK; nor need the Court concern itself with the actual costs of maintaining the children in Ms Stirling's household in the UK.
In so far as the dispute in relation to the children's airfares is concerned, Mr Dobson sought orders to the effect that Ms Stirling be responsible for the children's (economy) airfares for the relevant contact periods. Ms Stirling sought orders to the effect that she and
Mr Dobson each pay one half of the airfares.
Mr Dobson also seeks an order to the effect that Ms Stirling pay his costs (or a proportion of his costs) of the proceedings. The precise terms of the costs order that Mr Dobson seeks are unclear. Ms Stirling opposes Mr Dobson's application in this regard, and seeks an order that each party pay his/her own costs.
Backdating of child support
It was conceded that the Court has power to make a retrospective order for child support. Mr Bartfeld argued, however, that the power should not be exercised by backdating any relevant orders beyond the date of hearing. Indeed, in closing, Mr Bartfeld argued that the orders dealing with child support should be expressed to commence on 1 September 2010, being the date that Ms Stirling and the children left Australia to reside in the UK. Mr Brown argued that the relevant orders could and should be backdated to the date of Ms Stirling's initiating application – or, at least, to the date of her amended initiating application (in which she effectively abandoned her attempts to rely on the Agreement, and sought orders departing from the administrative assessments of child support).
Jurisdiction and power to make child support orders
That the Court has both jurisdiction and power to make the child support orders sought by Ms Stirling or Mr Dobson (or other child support orders deemed more appropriate by the Court) was not in dispute.
Other concessions
Mr Dobson conceded that he has the capacity to pay child support at the rate sought by Ms Stirling. He argued, however, that he should not have to pay child support at that rate.
Both parties conceded (as indicated above) that the Court should approach the competing child support applications on the basis that
Ms Stirling and the Dobson children continue to live in Melbourne, and that the children continue to attend the schools that they previously attended. Further, it was conceded that the Court should approach the competing applications on the (notional) basis that the overall cost of maintaining the children remains as it was when relevant evidence was given at the hearing in March 2010.
The orders sought by Mr Dobson necessarily imply a concession that he should pay child support (excluding school fees and associated expenses) at the rate of approximately $708 per week for the three Dobson children (being approximately $236 per child per week) – in accordance with the current assessment.
I note that the child support assessments dated 14 August 2009[8] record the following:
[8] Which are attached to Ms Stirling’s further response to Mr Dobson's case summary, filed 25 August 2009
a)in respect of the period from 13 July 2009 to 13 October 2009 –
i)the costs of the children are deemed to total $33,855 (or $11,285 per child); and
ii)the assessment requires Mr Dobson to pay child support at the rate of $33,855 per annum (or $648.83 per week, being $216.28 per week for each child); and
b)in respect of the period from 14 October 2009 to 12 October 2010 –
i)the costs of the children are deemed to total $36,957 (or $12,319 per child); and
ii)the assessment requires Mr Dobson to pay child support at the rate of $36,957 per annum (or $708.28 per week, being $236.09 per week for each child).
Little turns on the estimates of Mr Dobson's income in the assessment. The "cap" is slightly under $150,000, and there can be no doubt that Mr Dobson’s income is far in excess of that amount.
It is not in dispute that Mr Dobson has paid child support and other expenses for the Dobson children since their return to Melbourne.
Ms Stirling concedes that Mr Dobson has paid:
a)periodic child support at the top rate (being approximately $710 per week for all three children);
b)educational expenses (including, but not limited to, tuition fees, books, and uniforms) for both boys at [B] School, and for [Z] at [F]; and
c)the children's hospital, medical, dental and orthodontic expenses as and when they fell due.
Airfares
Before dealing with the child support issues, I propose to deal with the question of who should be responsible for meeting the children's airfares for the contact periods referred to in paragraphs 4(c) and (d) of the Final Parenting Orders.
On Ms Stirling’s part, it was argued that the airfares should be shared equally between the parties. It was submitted that:
a)
it is important for the children to see and understand that
Ms Stirling and Mr Dobson are both contributing to an expense of this nature;
b)Ms Stirling and Mr Dobson each has the capacity to meet her/his half share of the expense; and
c)no grounds exist to depart from "what would otherwise be the normal course in a case like this".[9]
[9] See 27 September 2010 transcript at page 38
On Mr Dobson’s part, it was argued that Ms Stirling should be solely responsible for the payment of the airfares. It was submitted that:
a)Ms Stirling relocated the children to the UK, thereby creating the need for such an expense;
b)although Mr Dobson consented to the relocation, he did so reluctantly and in the circumstances described in Dr N's report;
c)it was part of Ms Stirling's case that she would be responsible for the children's airfares to and from Australia for the Christmas school holiday contact period in each alternate year;[10] and
d)given that Mr Dobson already contributes to the children's expenses (including their school fees and associated expenses), it cannot be said that the children need to see and understand that he is contributing to an additional expense of this nature.
[10] See paragraph 7 of the final orders sought in Ms Stirling’s amended initiating application filed 14 December 2009 and further amended initiating application filed 25 February 2010
Doing the best that I can with the very limited evidence available to me in relation to this subject, I have concluded that Ms Stirling and
Mr Dobson should each pay one half of the children's airfares for the relevant contact periods. In reaching this conclusion, I note the following:
a)
The evidence before me at trial revealed that the Dobson children were not aware of the significant financial contributions that
Mr Dobson was making for their benefit. Indeed, they were somewhat critical of him for failing to pull his weight financially (as it were). I suspect that, given the children's (wholly unreasonable, in my opinion) attitude to Mr Dobson, they are unlikely to find it within themselves to give him credit where it is due in the future. Still, it is certainly in Mr Dobson’s interests (as well as in the children's interests) to ensure that the holiday contact periods spent in Australia actually occur, and are successful. It seems to me that requiring Ms Stirling and
Mr Dobson to each pay one half of the airfares can send a subtle message to the children to the effect that both their parents actively support the arrangements and want them to succeed. It is unnecessary to volunteer to the children that their parents are contributing equally to the costs of relevant contact arrangements, but Mr Dobson may certainly wish to use his contribution as a shield to protect him from further unfair (and uninformed) criticism by the children.
b)Ms Stirling conceded that she has the capacity to pay half the airfares for the relevant contact periods. She did not clearly concede that she has the capacity to pay the whole of the airfares for those periods. On the other hand, Mr Dobson did not assert that he does not have the capacity to pay half the airfares.
c)I am not persuaded that there exists what might be described as a "normal course" in relation to overseas travel of this nature. I suspect that each case is different. In any event, I can only form a view as to which party should be responsible for airfares on the basis of the evidence before me.
d)It is true that Ms Stirling took the children with her to live in the UK. It is also true, however, that Mr Dobson consented to that course of action. That he may have felt that he had little choice but to consent is a matter for him. After all, Ms Stirling’s application for permission to relocate with the children had yet to be finally determined. I can only assume, therefore, that he consented to the children's relocation because he had decided that, in all the circumstances, it was in their best interests to be allowed to go.
e)Although Ms Stirling did seek an order to the effect that she be responsible for the children's airfares to and from Australia, that proposed order was only expressed to relate to the Christmas school holiday contact period in each alternate year. It was not expressed to relate to the English long summer school holiday contact period as well. It was Ms Stirling's case that Mr Dobson should pay the expenses related to that contact period.[11] Seen in context, therefore, Ms Stirling was proposing that the children's airfares to and from Australia for the relevant contact periods should be shared.
f)Neither Mr Brown nor Mr Bartfeld submitted that I should resolve the dispute in relation to this subject on the basis of anything other than broad notions of justice. In other words, it was not presented to the Court as a child maintenance or child support issue, and it was not argued in those terms. The only guidance that the Court was provided to assist it in resolving the dispute comprised the submissions referred to above.
Child support – the Law[12]
[11] See paragraph 8 of the final orders sought in Ms Stirling’s amended initiating application filed 14 December 2009 and further amended initiating application filed 25 February 2010
[12] The following summary is reproduced from my judgment in the matter of Melville & Hunt [2006] FMCAfam 238
The process involved in the consideration of an application for departure from an administrative assessment of child support was explained by the Full Court in Gyselman.[13] The Full Court said (inter alia):
[13] (1992) FLC 92-279 at 79,064-5
Section 117 is the critical provision.
The structure of that section is that s.117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in subsections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
· Whether one or more grounds of departure in s.117(2) is established.
· Whether it is ‘just and equitable’ within the meaning of s.117(4) to make a particular order.
· Whether it is ‘otherwise proper’ within the meaning of s.117(5) to make a particular order.
It is clear from the careful way in which s.117 has been structured that the Court must address each of those three separate issues...
… Each of those grounds (in s.117(2)) 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 emphasise 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. (It has been held) 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.
It is clear from the decision in Gyselman that the Court is not obliged to "slavishly go through" each of the considerations in s.117(4). Nor is it necessary to adopt such an approach in relation to the matters referred to in s.117(5). In essence, the Court is obliged to adopt "a practical and flexible approach" to the consideration of the matters referred to in ss.117(4) and (5).[14]
[14] See Ross v McDermott (1998) 23 Fam LR 613 at 623-4.
Grounds for departure – Assessment Act, section 117(2)
Section 117(2) of the Assessment Act sets out the grounds for a departure order. The Court must be satisfied that at least one of these grounds exists before proceeding to consider whether it would be both just and equitable and otherwise proper to make a departure order.
Leaving aside the specific subsections of section 117(2), Ms Stirling relies upon the following grounds in support her application for a departure order:[15]
[15] See Ms Stirling’s further response to Mr Dobson's case summary filed 25 August 2009
a)that, in the special circumstances of the case, the costs of maintaining the children are significantly affected because they are being cared for, educated or trained in the manner that was expected by their parents; and
b)that, in the special circumstances of the case, adherence to the administrative assessment of child support would result in an unjust and inequitable determination of the financial support that Mr Dobson should provide for the children because of:
i)Mr Dobson's income, property and financial resources (or, more relevantly, Mr Dobson's income, property and financial resources in comparison with Ms Stirling's income, property and financial resources); and
ii)
Mr Dobson’s earning capacity (or, more relevantly,
Mr Dobson's earning capacity in comparison with
Ms Stirling's earning capacity).
None of the submissions made on Ms Stirling's behalf seem to identify the "special circumstances" that must be demonstrated before a relevant ground can be held to have been established. As indicated above, "special circumstances" are little more than facts peculiar to a particular case which distinguish it from other cases, or make it special or out of the ordinary. Alternatively, facts might amount to "special circumstances" if a failure to take them into account would result in injustice or undue hardship (to Ms Stirling, or possibly to the Dobson children).
To the extent that I am able to understand the submissions made on
Ms Stirling's behalf in support of the grounds for a departure order, it seems that she is contending that the children's lifestyle during her marriage to Mr Dobson, the children's current lifestyle and
Mr Dobson’s "level of wealth"[16] amount to "special circumstances".
Mr Dobson's view is that the children's lifestyle is lavish and unnecessary, and that the amount spent in supporting that lifestyle is excessive and unreasonable. He argues that he should not have to contribute to it beyond the amount that he is willing to pay.
[16] See Ms Stirling’s further response to Mr Dobson's case summary filed 25 August 2009
Leaving aside educational, medical and associated expenses (which
Mr Dobson has agreed to pay) the question arises whether "special circumstances" might be considered to exist if Ms Stirling is successful in demonstrating (for example) that the actual cost – to her – of maintaining the children is indeed something in excess of $1,500 or $2,000 per week. If Mr Dobson is "only" contributing some $700 per week to $800 per week towards the maintenance of the children,[17] and if Mr Dobson is in a much stronger financial position than Ms Stirling, then might these facts be regarded as sufficient "special circumstances" to support the departure application? In my opinion, they might. The overall financial circumstances of the parties, and the extremely comfortable lifestyle enjoyed by the children, clearly set this case apart from other cases. Where the actual expenses that Ms Stirling incurs in maintaining the children are far in excess of whatever allowance the child support scheme makes for the costs of children, and where
Mr Dobson has conceded that – if ordered to do so – he could meet those expenses, it is not difficult to conclude that "special circumstances" exist. Further, it is not difficult to conclude that failure to properly consider the departure application on its merits could result in an injustice to Ms Stirling (if not to the Dobson children).
[17] Ignoring, for the moment, his payment of the children’s school fees and other educational expenses, and his payment of medical and other health expenses
I turn now to consider the other elements of the grounds that
Ms Stirling relies upon.
Are the costs of maintaining the children significantly affected because they are being cared for in the manner that was expected by their parents?
Mr Dobson's case is that the children's lifestyle is not in accordance with his expectations; nor is it in accordance with any joint expectations that he and Ms Stirling may have had. He regards their current lifestyle as lavish, and Ms Stirling’s expenditure in seeking to maintain it as excessive. During the course of his evidence, however, Mr Dobson conceded that, to some extent at least, the expenses listed by Ms Stirling were reasonable.
Ms Stirling's description of the family's lifestyle before she and Mr Dobson separated is as follows:[18]
Throughout (our) marriage, (Mr Dobson) worked hard and was remunerated well for his employment. As a result of (Mr Dobson’s) remuneration, the children, (Mr Dobson) and I enjoyed a privileged lifestyle that included a large and well furnished home, frequent meals at restaurants, regular holidays and assistance from nannies and other staff.
[18] See paragraph 21 of Ms Stirling's trial affidavit
In response, Mr Dobson said:[19]
… I admit that during the marriage I worked hard and was well paid. I admit that (Ms Stirling), the children and I lived a privileged lifestyle. I tried to provide financial support to (Ms Stirling), the children and three children of my first marriage to the best of my abilities. (Ms Stirling) was very focused on financial and social status. We lived beyond our means and relied on debt to finance our asset base and lifestyle. … We were able to live a nice lifestyle in a large home (when the family lived) in England as this was financed by (my then employer) and my salary. One of the major points of strain in our marriage was my inability to afford the standard of living and lifestyle that (Ms Stirling) craved.
[19] See paragraph 186(c) of Mr Dobson's affidavit sworn 15 March 2010
Mr Dobson also said:[20]
Whilst I acknowledge that during the marriage, (Ms Stirling), the children and I lived a comfortable lifestyle, the lifestyle the children now apparently lead, based on (Ms Stirling's) claimed expenditure, is far beyond that which (Ms Stirling) and I led together and is not commensurate with the lifestyle I presently lead.
[20] See paragraph 170 of Mr Dobson's affidavit sworn 15 March 2010
I shall return to this subject later in these Reasons, after I have dealt with the overall costs of maintaining the children.
Can the level of financial support that Mr Dobson would be providing pursuant to an administrative assessment be considered unjust and inequitable when regard is had to his and Ms Stirling’s income and overall financial position?
The answer to this question lies in a consideration of the overall costs of maintaining the children, and a general comparison of the respective financial positions of Ms Stirling and Mr Dobson. Such a comparison will necessarily involve reference to Mr Stirling's financial position.
Again, I shall return to this subject later in these Reasons.
Overall costs of maintaining the Dobson children
Ms Stirling's claim was for Mr Dobson to pay her the sum of $650 per week per child, or a total of $1,950 per week, in respect of child support. In addition, she sought that Mr Dobson continue to pay all school fees and associated expenses, and make various other payments for the benefit of the children. As indicated above, Ms Stirling and
Mr Dobson agree that all relevant payments are to be assessed on a notional or fictional basis – namely, that the children continue to reside in Australia and continue to attend the schools that they previously attended (being [B] School and [F]).
According to Part N of Ms Stirling's financial statement, her average weekly expenses for the Dobson children total $4,457 (or $1,486 per child). According to the Ms K affidavit, Ms Stirling's average weekly expenses for the children[21] totalled $2,518.20 (or $839.40 per child). The methodology used by Ms K was explained exhaustively in her affidavit.
[21] For the period from July 2008 to June 2009.
The cross examination of Ms K revealed, however, that some of the figures that she had used were either inaccurate or inappropriately allocated to the costs of maintaining the Dobson children. For example:
a)At least one food/grocery expense, and potentially more of such expenses, included a significant amount for alcohol (presumably for Ms Stirling and Mr Stirling).
b)The gross figure for "repairs – furnishings and appliances" for July 2008 (amounting to slightly in excess of $17,000) included a very significant component for appliances and the like purchased for Property N upon Ms Stirling and Mr Stirling's return to Australia from Switzerland. The allocation and apportionment of such expenses to the Dobson children was wholly disproportionate.
c)The gross figure for "repairs – furnishings and appliances" for August 2008 (amounting to approximately $3,700) included an item relating to the purchase of a barbecue for the family for over $2200. Again, the allocation and apportionment of such an expense to the Dobson children was wholly disproportionate.
d)The gross figure for "entertainment/hobbies" for August 2008 (amounting to just under $2,500) included a very significant component for restaurant meals, presumably for the whole family. Again, the allocation and apportionment of such expenses to the Dobson children was wholly disproportionate.
e)The gross figure for "hairdressing, toiletries" for October 2008 (amounting to approximately $1,540) included a large proportion of items that appear to relate to Ms Stirling only.
f)The gross figure for "household supplies" for May 2009 (amounting to $9,892) comprised a single purchase of bed linen from a department store in Zurich. The allocation and apportionment of such an expense to the Dobson children seems wholly disproportionate.
Notwithstanding the inaccuracies or shortcomings described in the previous paragraph, I am satisfied that the methodology described in the Ms K affidavit is logical and appropriate. I am also satisfied that the vast majority of the allocated amounts in annexure KD3 have been properly and reasonably allocated, and fairly reflect the amounts that Ms Stirling has spent for the benefit of the Dobson children. In order to take account of the inaccuracies or shortcomings to which I have referred, however, and recognising that an exercise of this nature can never be mathematically precise (and, at the same time, doing the best that I can with the evidence available to me), I find that it is appropriate to reduce the average weekly expenditure calculated in the Ms K affidavit by 10%. It follows that the Ms K affidavit should have revealed that Ms Stirling's average weekly expenses for the children[22] totalled $2,266.38 (instead of $2,518.20), or $755.46 per child (instead of $839.40 per child).
[22] For the relevant period.
I find, however, that the following weekly figures reflect a more appropriate allowance for the costs incurred by Ms Stirling in maintaining the Dobson children, and represent their proper needs when they are with her:
Food and household supplies
$530
House repairs
$37
Gas and electricity
$59
Telephone
$80
Motor vehicle (petrol, registration, maintenance and insurance)
$93
Clothing and shoes
$225
Pocket money/children's activities, entertainment and hobbies
$200
Childminding
$100
Holidays
$333
Chemist/pharmaceutical expenses
$30
Gardening/lawn mowing
$50
Cleaning (house/pool)
$30
Repairs (furnishing/appliances)
$75
Dry-cleaning
$40
Books and periodicals
$10
Gifts
$100
Hairdressing/toiletries
$35
Total:
$2,027.00
The above figures have as their genesis the average weekly expenses conceded by Mr Dobson in cross examination on the morning of 26 March 2010, but they are not wholly based on those concessions. I am well aware, of course, that Mr Dobson was given a further opportunity (over the luncheon adjournment) to analyse the average weekly expenses claimed by Ms Stirling in respect of the three children, and that when he returned to the witness box at approximately 2.15 p.m. on 26 March 2010, he presented the schedule that now comprises exhibit W2. I am not satisfied, however, that the figures inserted by Mr Dobson (or on his behalf) in exhibit W2 fairly or accurately reflect a reasonable allowance for the costs actually incurred by Ms Stirling in maintaining the Dobson children.
For example, during the morning of 26 March 2010 Mr Dobson conceded that a reasonable allowance for the telephone expenses of all three children (which he currently pays) is $80 per week. In the afternoon, he amended that figure to $50 per week. Similarly, during the morning he conceded that a reasonable allowance for motor vehicle expenses (including petrol, registration, maintenance and insurance) for the three children is $300 per week; in the afternoon, he amended that figure to $60 per week. During the morning he conceded that a reasonable allowance for clothing and shoes for the three children is $350 per week; in the afternoon, he amended that figure to $145 per week.
Given that the quantum of child support that Mr Dobson would be obliged to pay was always a significant issue to be determined at trial, it is extraordinary (and wholly unsatisfactory) that Mr Dobson had clearly given no, or no adequate, thought to what might be considered appropriate allowances for the various categories of expenses relating to the children. His evidence in relation to the subject was less than impressive.
At one point, Mr Dobson simply insisted that, in his opinion, "it is appropriate to spend on the children around $13,000 per annum per child" (which is simply an approximation of the amount reflected in the current child support assessment). Senior counsel for the wife had been cross-examining him on appropriate allowances for specific expenses. Mr Dobson clearly found the experience frustrating and unsettling. The following exchange then occurred:[23]
[23] See 26 March 2010 transcript at pages 61-2
Mr Brown SC: … I am asking you, Mr Dobson, how much is attributable, appropriate, to spend on the children for household supplies?
Mr Dobson: I think it's appropriate to spend on the children around $13,000 a year per child.
Mr Brown: What? That is what it says in the child support assessment?
Mr Dobson: That is what I think is appropriate to spend on the children.
Mr Brown: Well, you just answer my question then, Mr Dobson?
Mr Dobson: I have. You asked me how much I think is appropriate to spend on the children.
Mr Brown: You are being given the opportunity to do something that your lawyers did not do and is that your answer?
Mr Dobson: My answer is that I think it's appropriate to spend on the children about $13,000 each per year.
Walters FM: Mr Dobson, that is non responsive answer.
Mr Dobson: Okay
Clearly, Mr Brown had been pressing Mr Dobson to give an estimate of the cost of household supplies for the children on a weekly basis. Seemingly for his own purposes, Mr Dobson saw fit to answer a different question – being his assessment of the total amount that it is appropriate to spend on each of the children on an annual basis. His answer was not responsive. Unfortunately, it was typical of many of his answers to questions relating to expenditure on the children.
Towards the end of his cross examination, Mr Brown put to Mr Dobson that the amount claimed by Ms Stirling (being $650 per child per week) is appropriate to meet their proper needs. Mr Dobson responded:[24]
I have taken the opportunity to do a calculation based on the evidence that I had and the assistance of people who gave me some better idea of what costs were and given you that information. (Emphasis added)
[24] See 26 March 2010 transcript at page 75
Mr Dobson was clearly referring to events that occurred over the luncheon adjournment.
I do not know to whom Mr Dobson was referring when he said that he had received assistance from people who had given him "some better idea of what costs were", and I specifically make no finding to the effect that Mr Dobson received advice from any of his legal advisers. I am satisfied, however, that the estimates for the weekly expenses relating to the children contained in exhibit W2 were not wholly based on Mr Dobson's own knowledge. For that reason, I am not prepared to accept them as accurate, and (as indicated above) I prefer the estimates that he gave during the course of his cross examination prior to the luncheon adjournment.
Still, some of the items contained in the schedule set out above require comment.
Food and household supplies
Mr Dobson originally conceded that a reasonable allowance for food for the three children on a weekly basis was $375. He made no concession in relation to a reasonable allowance for household supplies. In exhibit W2, he estimated $375 for food and household supplies. In annexure KD3 to the Ms K affidavit, the average of the Dobson children’s share of food and household supplies expenses for the relevant 11 month period was approximately $760 per week. If I discount that amount by 10% (as explained above), it is clear that
Ms Stirling's estimate of a reasonable allowance for food and household supplies is approximately $684 on a weekly basis. Doing the best that I can with the evidence available to me, I find that a fair and reasonable allowance for these items is the average between the amount conceded by Mr Dobson (for food alone, or, alternatively, for food and household supplies) and the discounted allowance claimed by Ms Stirling (for food and household supplies together). The average of $375 and $684 is $529.50, which I shall round up to $530.
If I am wrong in averaging the two figures, then I find that it is reasonable to accept Mr Dobson’s originally conceded amount of $375 per week for food, and to add to it a further amount of $155 per week for household supplies (making a total of $530). In my opinion, when regard is had to the children's standard of living, an allowance of $155 per week for household supplies is acceptable.
Gas and electricity
Mr Dobson was not prepared to make any concession in relation to these figures on the morning of 26 March 2010. I do not accept his evidence contained in the schedule comprising exhibit W2. In annexure KD3 to the Ms K affidavit, the average of the Dobson children's share of gas and electricity expenses for the relevant 11 month period was approximately $66 per week. If I discount that amount by 10% (as explained above), it is clear that Ms Stirling's estimate of a reasonable allowance for gas and electricity is approximately $59 on a weekly basis. I find that $59 per week is a fair and reasonable allowance for this item.
Motor vehicle expenses (including petrol, registration, maintenance and insurance)
Although Mr Dobson initially conceded (on the morning of 26 March 2010) that a reasonable allowance for this item is $300 per week, I note that annexure KD3 to the Ms K affidavit records that the average of the Dobson children's share of the motor vehicle expenses for the relevant 11 month period was approximately $103 per week. If I discount that amount by 10% (as explained above), it is clear that Ms Stirling's estimate of a reasonable allowance for motor vehicle expenses is approximately $93 on a weekly basis. I find that $93 per week is a fair and reasonable allowance for this item.
Clothing and shoes
Although Mr Dobson initially conceded (on the morning of 26 March 2010) that a reasonable allowance for this item is $350 per week, I note that annexure KD3 to the Ms K affidavit records that the average of the Dobson children's share of the clothing and shoes expenses for the relevant 11 month period was approximately $250 per week. If I discount that amount by 10% (as explained above), it is clear that
Ms Stirling's estimate of a reasonable allowance for clothing and shoes for the children is approximately $225 on a weekly basis. I find that $225 per week is a fair and reasonable allowance for this item.
Chemist/pharmaceutical expenses
Mr Dobson was not prepared to make any concession in relation to this figure on the morning of 26 March 2010. In the schedule comprising exhibit W2, Mr Dobson estimated this item at $30 per week. In annexure KD3 to the Ms K affidavit, the average of the Dobson children's share of the chemist and pharmaceutical expenses for the relevant 11 month period was approximately $29 per week. If I discount that amount by 10% (as explained above), it is clear that Ms Stirling's estimate of a reasonable allowance for chemist and pharmaceutical expenses is approximately $26 on a weekly basis. There is hardly any difference between the two figures. In the circumstances, I have adopted the amount conceded by Mr Dobson, being $30 per week.
All other expenses
I have adopted the amounts conceded by Mr Dobson on the morning of 26 March 2010 (in other words, before the production of exhibit W2) for all other expenses, including house repairs, telephone, children's activities, entertainment and hobbies, childminding, holidays, gardening and lawn mowing, cleaning expenses, repairs, dry cleaning, books and periodicals, gifts and hairdressing and toiletries.
Conclusion regarding costs incurred by Ms Stirling
It is clear from the schedule set out above that I have found that a fair allowance for the costs incurred by Ms Stirling in maintaining the three children while they are with her is $2,027 per week. This total figure is not significantly different to the discounted weekly total – amounting to $2,266.38 – summarised in the Ms K affidavit. I note, however, that annexure KD3 to the Ms K affidavit includes an allowance of in excess of $500 per week in respect of cleaning expenses (for the house and pool). In other words, it has been suggested that the children's share of these expenses is in excess of $500 per week. I find that such an allowance is excessive. It is true, however, that the amount conceded by Mr Dobson (being $30 per week) is probably inadequate. Overall, however, and approaching the calculation on something of "swings and roundabouts" basis, I am satisfied that the figure of $2,027 per week is indeed a fair and proper overall allowance for the costs incurred by
Ms Stirling in maintaining the Dobson children while they are with her. I accept that there is some room for argument about the precise quantum of the various expenses making up that total, but it is close enough to the discounted total contained in annexure KD3 to the Ms K affidavit to remove any discomfort that I might otherwise feel about the figure.
Still, the amount of $2,027 per week does not represent the total cost to both parties of maintaining the Dobson children (having regard to their proper, overall needs). It only represents the costs incurred by
Ms Stirling in maintaining the children while they are with her.
In my opinion, two additional categories of expenses must be added to the figure of $2,027 per week in order to determine the total cost to the parties of maintaining the Dobson children. The first category relates to the general costs incurred by Mr Dobson in maintaining the children when they are with him. The second category relates to the other expenses paid by Mr Dobson (relevantly, all expenses associated with the children's education and health).
Costs incurred by Mr Dobson
According to Mr Dobson, the 2010 school fees for the boys at [B] School totalled $37,146 (excluding extras such as school related extracurricular activities). The 2010 school fees for [Z] at [F] were $19,404 (again, excluding extras such as school related extracurricular activities). In other words, school fees for the Dobson children totalled $56,550 (or $1088 per week).
Obviously, the school fees for the children would increase on a regular basis if the children had continued to attend those schools, and as they move from lower academic years to higher academic years.
In paragraph 105 of his trial affidavit, Mr Dobson asserts that he spent approximately $11,874 on health expenses for the children (comprising medical, dental, health insurance, ambulance and pharmaceutical expenses), and approximately $17,052 for "other/general" expenses (comprising mobile phone, Internet, birthday parties and laptop computers). He says that he paid these amounts between 1 July 2008 and the date of swearing his affidavit (being 15 March 2010). It follows that the amounts were paid during a period of approximately 86 weeks. Thus, health expenses for the Dobson children amounted to approximately $138 per week (or $46 per week per child) and "other/general" expenses amounted to approximately $198 per week (or $66 per week per child).
In his financial statement, Mr Dobson records that he pays the following amounts (by way of non-periodic maintenance/child support) for the benefit of the children on an annual basis:
a)Educational expenses:
i)School fees: $56,550
ii)Tutoring/sport: $2,000
iii)Lunches: $2,000
iv)Books: $2,200
v)Uniforms: $5,000
These figures total $67,750
b)Medical/dental expenses:
i)Medical: $3,000
ii)Dental: $2,000
These figures total $5,000
c)Other activities: $3,000
For reasons that will become clearer later in these Reasons, I propose to divide the educational expenses referred to in the preceding paragraph into two parts:
a)school (tuition) fees: and
b)all other expenses relating to the children’s education.
The total of all the above expenses (being the expenses referred to in Mr Dobson's financial statement) is $75,750 per annum, or $1,457 per week. School (tuition) fees amount to $56,550 per annum (or $1,088 per week), all other expenses relating to the children’s education total $11,200 per annum (or $215 per week), medical/dental expenses total $5,000 per annum (or $96 per week) and "other activities" total $3,000 per annum (or $58 per week).
I have already concluded that a fair allowance for the overall costs incurred by both Ms Stirling and Mr Dobson in maintaining the Dobson children (which allowance represents the children's proper needs) is a total of $3,605 per week. When I take into account the matters set out in section 117(4) of the Assessment Act – which factors have been discussed above[29] – I conclude that it would be just and equitable for Mr Dobson to bear something between 75% and 80% of those costs. It would be intellectually dishonest for me to choose either of those percentages, and hence I conclude that it is appropriate for me to choose the midpoint of the two, being 77.5%.
[29]I have chosen the above percentage because of the fact that
Mr Dobson's earning capacity is at least five times greater than
Ms Stirling's earning capacity (when regard is had to the assets and resources available to each – although I accept that Ms Stirling's earning capacity would certainly be greater if she had access to funds representing what appears to be her half interest in [M]). I have also taken into account Mr Dobson's far stronger financial position, whilst at the same time having regard to the aspects of Ms Stirling's relationship with Mr Stirling discussed above (including my finding to the effect that Mr Stirling will meet any shortfall between the actual costs of maintaining the children and the amount paid by Mr Dobson). Finally, it seems to me that it would be neither just nor equitable to order Mr Dobson to pay more than the percentage to which I have referred (or for Ms Stirling to be ordered to pay less than the percentage that applies to her).
77.5% of $3,605 per week is $2,794. Given that Mr Dobson is presently responsible for living and other expenses while the children are with him (totalling $158 per week), school (tuition) fees (totalling $1,088 per week), all other expenses relating to the children's education (totalling $215 per week) and medical, dental and other health expenses (totalling $117 per week), it is arguable that the quantum of child support that he should pay is $1,216 per week, or $405 per child per week. For the reasons set out below, however, that is not the precise order that I propose to make.
Child support orders
Having regard to the discussion, findings and conclusions set out above, I propose to make orders which will have the following effect:
a)Mr Dobson will be required to pay an amount equivalent to the school fees (that is, school fees or tuition fees in the strict sense) that he would have paid for the Dobson children if they had continued to attend [B] School and [F]. The relevant school fees are the fees that would be applicable for each child in the academic year in which he or she would ordinarily have been enrolled in those schools. It follows that the school fees will increase on an annual basis. Mr Dobson will be required to pay the school fees (so calculated) in four equal instalments, to be paid prior to 31 January, 30 April, 31 July and 31 October each year. This arrangement will commence in the 2011 school year, with one exception: having regard to the date upon which these Reasons are to be published (and orders made pursuant to them), I have decided that Mr Dobson should have until 28 February 2011 to pay the first instalment of the 2011 school fees. In practical terms, Ms Stirling can utilise the moneys so received to meet the costs of the children's education in the UK.
b)Mr Dobson will not be required to pay – that is, directly to suppliers – any other educational expenses for the children (including, but not limited to, levies, uniforms, books and stationery, computer hardware and software, school excursions and compulsory travel; school lunches and school based extra curricular activities), because it is simply too difficult to notionally calculate such additional expenses, given that the children now live in the UK and are not actually attending [B] School and [F]. Instead, and as appears above, I have converted the allowances that Mr Dobson made for these additional expenses into a combined figure of $215 per week,[30] which figure will be added to the child support that Mr Dobson is otherwise required to pay.
c)Put another way, the responsibility for paying all other educational expenses for the children (including, but not limited to, levies, uniforms, books and stationery, computer hardware and software, school excursions and compulsory travel; school lunches and school based extra curricular activities) will move from Mr Dobson to Ms Stirling, and instead of Mr Dobson (himself) spending some $215 per week on these expenses, he will be obliged to pay that amount to Ms Stirling.
d)Similarly, Mr Dobson will not be required to pay (that is, directly to suppliers) private health insurance premiums, ambulance cover, and hospital, medical, dental, orthodontic, prescribed pharmaceutical and optical expenses for the children (save for such expenses that may arise when they are actually in his care). Again, it is simply too difficult to notionally calculate such additional expenses, given that the children are now living in the UK. Instead, and as appears above, I have converted the allowances that Mr Dobson made for these expenses into a combined figure of $117 per week,[31] which figure will be added to the child support that Mr Dobson is otherwise required to pay.
e)Thus, the responsibility for paying all private health insurance premiums, ambulance cover, and hospital, medical, dental, orthodontic, prescribed pharmaceutical and optical expenses will move from Mr Dobson to Ms Stirling, and instead of Mr Dobson (himself) spending some $117 per week on these expenses, he will be obliged to pay that amount to Ms Stirling.
f)It follows that, in addition to the amount of $1,216 per week referred to above, Mr Dobson will be required to pay the additional or supplementary education expenses amounting to $215 per week and the children's medical, dental and other health expenses amounting to $117 per week. In total, therefore, he will be required to pay child support at the rate of $1,548 per week, or $516 per child per week. This equates to $26,832 per child per annum, or $2,236 per child per month. Given that all calculations have been undertaken on the assumption that the children are or have remained in Melbourne, this amount will be increased on an annual basis in accordance with variations in the consumer price index for Melbourne.
[30] As recorded in paragraph 133 to 140 above, these additional educational expenses comprise tutoring/sport at the rate of $2000 per annum, lunches at the rate of $2000 per annum, books at the rate of $2200 per annum and uniforms at the rate of $5,000 per annum. The total of these expenses is $11,200 per annum, or $215 per week.
[31] As recorded in paragraph 140(c) above
However, given that Mr Dobson has been paying (that is, directly to suppliers) the children’s additional or supplementary education expenses amounting to $215 per week and the children's medical, dental and other health expenses amounting to $117 per week to date, I propose to order that the “transfer” of responsibility for the expenses be deemed to occur on 1 January 2011. To order otherwise would result in Mr Dobson becoming responsible for arrears in respect of expenses that he has already paid.
Thus, until 31 December 2010 Mr Dobson should be deemed to be responsible for child support at the rate of $1,216 per week, or $405 per child per week.[32] This equates to $21,060 per child per annum, or $1,755 per child per month.
[32] See paragraph 178 above.
The actual orders that I propose to make are to the following effect:
a)Pursuant to section 117 of the Child Support (Assessment) Act 1989, and subject to paragraph (b) below, there be a departure from all relevant administrative assessments of child support payable by Mr Dobson to Ms Stirling for the Dobson children as follows:
i)In relation to [X]:
· For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [X] be set at $21,060 (being $1,755 per calendar month).
· For the period from 1 January 2011 to [date omitted] 2014 (being the date upon which [X] attains the age of 18 years), the annual rate of child support for [X] be set at $26,832 (being $2,236 per calendar month).
ii)In relation to [Y]:
· For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Y] be set at $21,060 (being $1,755 per calendar month).
· For the period from 1 January 2011 to [date omitted] 2016 (being the date upon which [Y] attains the age of 18 years), the annual rate of child support for [Y] be set at $26,832 (being $2,236 per calendar month).
iii)In relation to [Z]:
· For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Z] be set at $21,060 (being $1,755 per calendar month).
· For the period from 1 January 2011 to [date omitted] 2018 (being the date upon which [Z] attains the age of 18 years), the annual rate of child support for [Z] be set at $26,832 (being $2,236 per calendar month).
b)
The annual rate of child support payable by Mr Dobson to
Ms Stirling for each of the children pursuant to paragraph (a) above will increase from 1 January each year (commencing 1 January 2012), in accordance with variations in the consumer price index (all groups level) for Melbourne.
c)Pursuant to section 124 of the Child Support (Assessment) Act 1989, and subject to paragraphs (d), (e) and (f) below, Mr Dobson pay additional child support to Ms Stirling for the Dobson children by way of lump sum payments as follows:
i)In relation to [X]:
A lump sum payment equivalent to the annual tuition fees charged by [B] School for a boy in the same academic year as that in which [X] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year – provided that such fees shall be paid in four equal instalments on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), except for the instalment that would otherwise have been payable on 31 January 2011, which shall be payable by 28 February 2011.
ii)In relation to [Y]:
A lump sum payment equivalent to the annual tuition fees charged by [B] School for a boy in the same academic year as that in which [Y] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year – provided that such fees shall be paid in four equal instalments on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), except for the instalment that would otherwise have been payable on 31 January 2011, which shall be payable by 28 February 2011.
iii)In relation to [Z]:
A lump sum payment equivalent to the annual tuition fees charged by [F] School for a girl in the same academic year as that in which [Z] would have been enrolled had she been living in Melbourne and attending [F] School for the whole of that calendar year – provided that such fees shall be paid in four equal instalments on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), except for the instalment that would otherwise have been payable on 31 January 2011, which shall be payable by 28 February 2011.
d)For the purposes of paragraph (c) above, the expression "annual tuition fees" shall mean the annual tuition fees identified by the relevant schools (in each school's prospectus or other published summary of fees and charges) as tuition fees or charges for the relevant year, and does not include –
i)any other fees or charges that might be imposed by the relevant schools for children to attend them (including, but not limited to, school levies or building fund contributions);
ii)uniforms, books and stationery, computer hardware and software, school excursions and compulsory travel; school lunches and school based extra curricular activities; and
iii)any other fees or charges associated with school expenses of an optional or voluntary nature.
e)The child support ordered to be provided by Mr Dobson in paragraph (c) above shall terminate in the following circumstances:
i)Mr Dobson's obligation to pay [X]'s notional school fees shall terminate upon [X] completing his secondary education in the United Kingdom (or elsewhere), or upon [X] attaining the age of 18 years, whichever occurs first;
ii)Mr Dobson's obligation to pay [Y]'s notional school fees shall terminate upon [Y] completing his secondary education in the United Kingdom (or elsewhere), or upon [Y] attaining the age of 18 years, which occurs first; and
iii)Mr Dobson's obligation to pay [Z]'s notional school fees shall terminate upon [Z] complete in her secondary education in United Kingdom (or elsewhere), or upon [Z] attaining the age of 18 years, whichever occurs first.
f)The child support ordered to be provided by Mr Dobson in paragraph (c) above is not to be credited against Mr Dobson’s liability for periodic child support as provided for in paragraph (a) above, and is to be paid by Mr Dobson in addition to the said periodic child support.
Whether the proposed child support order is "otherwise proper"
Having regard to the financial positions of Ms Stirling and Mr Dobson, and taking into account the provisions of section 117(5) of the Assessment Act, I find that it is indeed "otherwise proper" to make the orders that I have foreshadowed.
Retrospectivity
As is apparent from the proposed orders set out above, I find that it is appropriate to back date the departure order to the date upon which
Ms Stirling filed her amended initiating application (being 14 December 2009). Until that time, Ms Stirling persisted with her attempts to rely on the Agreement, which attempts ultimately proved futile. In my opinion, she could have and should have sought to register the Agreement at a much earlier time. Had she done so, she could have sought an administrative assessment of child support and applied for a departure at a much earlier stage. She could also have applied for internal CSA reconsideration of decisions contained or necessarily reflected in the administrative assessment. If dissatisfied with such reconsideration, she could have applied to the Social Security Appeals Tribunals for an external review of the relevant decisions.
That is not to say that Ms Stirling did not have the right to apply to this Court for a departure order on the basis of section 116(1)(b) of the Assessment Act. Clearly, she did have such a right, but failure to follow the more usual (and preferred) process seems to have led to both parties’ cases – as they relate to child support, at least – being less efficiently conducted than they could have been.
I am not prepared to accede to Mr Dobson's request to order that the departure provisions have effect from the date of trial (or even 1 September 2010). I have found that there was merit in Ms Stirling's case for a departure order and, in my opinion, it should have been obvious to Mr Dobson and his advisers that he could not be successful in seeking to limit his child support obligations to the maximum rate payable under the child support scheme. When Ms Stirling eventually realised that the Agreement could not be registered and that other alternatives had to be found, Mr Dobson could have, and should have, reassessed his position in relation to what might be considered a just and equitable contribution on his part to the overall costs of maintaining the children.
I am well aware that my orders will create "instant arrears" (as it were), in that the amount of child support that Mr Dobson has been paying since 14 December 2009 is significantly less than the amount that I have found that he should pay. In order to avoid costly and unproductive enforcement proceedings, however, I will record that
Mr Dobson should be given credit for the following payments:
a)I find that Mr Dobson has paid all the children's educational expenses (in the broadest sense). For this reason, I have ordered that Mr Dobson's obligation to pay notional school fees for the Dobson children should only commence in this calendar year (2011).
b)Mr Dobson has paid child support in accordance with the two child support assessments issued on 14 August 2009 (one relating to the period from 13 July 2009 to 13 October 2009 the other relating to the period from 14 October 2009 to 12 October 2010). I do not know what child support Mr Dobson has paid since 12 October 2010.
c)In addition to the child support referred to in (b) above, I have found that Mr Dobson was paying school (tuition) fees totalling $1088 per week, all other expenses relating to the children's education totalling $215 per week, and medical/dental and other health care expenses totalling $117 per week. In my opinion, any potential enforcement proceedings must also credit Mr Dobson with these payments from 14 December 2009 to 31 December 2010.
I am satisfied, however, that Mr Dobson has the capacity to pay any "instant arrears" that may arise as a result of the orders to be made pursuant to these Reasons (after allowing credits for the amounts referred to in the preceding paragraph).
Costs
The question of costs in Family Law proceedings is dealt with in section 117 of the Family Law Act. Pursuant to section 100 of the Assessment Act, similar rules apply.
A judicial officer has a broad discretion in relation to costs matters. For example, the Full Court has indicated that it will not ordinarily intervene unless the order is plainly unreasonable. Indeed, it has been held that the court has an almost unlimited jurisdiction in relation to costs, although clearly any costs order must be just.[33]
[33] See, for example, Kelly v Kelly(No 2) (1981) FLC 91-108, Hogan (1986) FLC 91-714, and I v I (No 2) (1996) FLC 92-625
It is not the law that a costs order can only be made in "a clear case". Although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party shall bear his or her own costs, that general rule is expressed to be subject to section 117(2), and must yield whenever a Court finds that there are circumstances which justify the making of a costs order.[34]
[34] See Penfold (1980) FLC 90-800
I turn now to consider the factors that I must under section 117 of the Family Law Act. The first of the matters to which the Court must have regard comprises the financial circumstances of each of the parties to the proceedings. Those have been dealt with above. Clearly,
Ms Stirling can afford to pay an order for costs if I am minded to make such an order. Equally clearly, though, Mr Dobson’s financial circumstances are such that he will not be placed in a position of financial stress if no order is made.
Section 117(2A)(b) requires the court to consider whether any party is in receipt of legal aid, and if so the terms of that assistance. Neither party is in receipt of legal aid, and this is factor is therefore not a relevant consideration.
The next factor is section 117(2A)(c), which requires the Court to have regard to the conduct of the parties to the proceedings in relation to the proceedings. In other words, the Court is obliged to have regard to the parties' conduct as litigants.
I am satisfied that both Ms Stirling and Mr Dobson have conducted themselves appropriately as litigants. Mr Bartfeld urged the Court to have regard to the fact that Ms Stirling persevered with her original initiating application for longer than should have been the case. The fact of the matter is, however, that there was (to use Mr Brown’s description) "an enormous forensic conflict with respect to whose responsibility it was to register the Agreement". Further, Mr Bartfeld described the dispute in relation to the validity of the Agreement as "a technical and complex one". Regrettably, Mr Dobson's objections to Ms Stirling's reliance on the Agreement were raised comparatively late, and with minimal notice to Ms Stirling and her advisers.
Still, it is likely that the proceedings were indeed protracted because of Ms Stirling's failure to abandon her attempts to rely on the Agreement at an earlier stage. That is a matter to which I have regard, whether it is properly categorised as falling under the general heading of the parties’ conduct as litigants or under the general category of "such other matters as the Court considers relevant". Similarly, I have regard to the fact that Ms Stirling saw fit not to involve herself in the CSA review process (preferring to litigate the issue in this Court directly). I do accept, however, that Mr Dobson raised no objection (or no effective objection) to Ms Stirling's approach in this regard.
Neither party was a wholly satisfactory or particularly impressive witness. From the Court's point of view, it was a frustrating exercise to sit through each party's evidence. During the course of the trial I made comments that might be interpreted as being somewhat critical of both Ms Stirling and Mr Dobson. I need say nothing further about these matters at this stage.
The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court. That is not a relevant consideration in the circumstances of this case.
The next factor is whether any party to the proceedings has been wholly unsuccessful in the proceedings. The fact of the matter is that neither party was wholly unsuccessful (or wholly successful, for that matter). It is fair to say that each party's case tended to ebb and flow (as it were) during the course of the proceedings. My impression is that the child support dispute was neglected, to some extent, because of the parties’ focus on parenting issues and Ms Stirling's desire to relocate to the United Kingdom with the children. That neglect affected both sides, and it is clear from these Reasons that a significant number of issues were "glossed over" by Ms Stirling and Mr Dobson and their legal representatives.
Ms Stirling was seeking child support at the rate of $650 per child per week, whereas Mr Dobson sought to adhere to the most recent child support assessment (which required him to pay child support at the rate of $708 per week, or $236 per child per week). He also sought orders to that effect that the child support that he is to pay for the children in the future be capped at the maximum rate (for three children) prescribed by the CSA from time to time, and that the school fees and associated expenses be capped at the amount that he would have had to pay for the children if they were being educated at private schools in Australia.
At the end of the day, I have ordered Mr Dobson to pay child support at the rate of $516 per child per week (with effect from 1 January 2011). This is, however, an "all inclusive" rate, which incorporates some of the items that Mr Dobson was previously paying separately, such as educational and associated expenses other than tuition fees and medical, dental and other health expenses. If the children had remained in Australia, and if Mr Dobson had continued to pay all educational and associated expenses and all medical, dental and other health expenses, then, on the evidence before me, I would have ordered him to pay child support at the rate of $405 per child per week[35] (which is the amount that I have ordered him to pay from 14 December 2009 to 31 December 2010).
[35] See paragraph 178 above
Seen in this light, the orders that I have made appear to fall more or less in the middle of the range that spans the amount sought by
Ms Stirling and the amount proposed by Mr Dobson. Clearly, neither party has been wholly successful, and neither has been wholly unsuccessful.
I accept that it is fair to say that Mr Dobson was wholly unsuccessful in relation to the very limited dispute relating to the children's airfares to from Australia for contact. But this was a very minor issue in the context of quite major litigation, and it took almost no court time. In my opinion, it certainly does not justify an order for costs in
Ms Stirling's favour; nor could it insulate Ms Stirling from
Mr Dobson's application for costs.
Finally, the Court is obliged to have regard to any offers in writing.
I am not aware of any such offers.
In all the circumstances, I am not persuaded that an order for costs is justified. Indeed, I am firmly of the view that it is appropriate for each party to bear his/her own costs.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 21 January 2011
And I would add that it is impossible to see how any hardship could be caused to Ms Stirling,
Mr Dobson or the Dobson children, irrespective of whatever orders I may be intended to make – provided that such orders are somewhere in the range of the orders proposed by either Ms Stirling or Mr Dobson.
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