STYLES & PALMER
[2014] FamCA 383
•11 June 2014
FAMILY COURT OF AUSTRALIA
| STYLES & PALMER | [2014] FamCA 383 |
| FAMILY LAW – CHILDREN – Final Orders – International Relocation – parties originally from the United Kingdom – mother seeks to relocate to England with children – emotional and financial difficulties if she were to remain in Australia – father opposes relocation – best interests of the children – meaningful relationship - reasonable practicability – mother permitted to relocate with children after a period of two years. FAMILY LAW – PROPERTY – Final Orders – de facto relationship – overseas assets – modest asset pool agreed by parties – initial and ongoing financial contributions by father – mother primary caregiver – father provided for non-biological son – just and equitable – 62.5 / 37.5 percentage split in favour of husband. FAMILY LAW – CHILD MAINTENANCE – Final Orders – duty to maintain non-biological child - not appropriate to simply apply child support formula contained in legislation but may be used as a check and balance – father to pay $95 a week until mother and children relocate to the United Kingdom. |
| Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65DA, 65DAA, 66D, 66N, 66M, 69ZN, 69ZT, 90SM, 90SF |
| AMS v AIF (1999) 199 CLR 860 |
| APPLICANT: | Ms Styles |
| RESPONDENT: | Mr Palmer |
| FILE NUMBER: | ADC | 4906 | of | 2012 |
| DATE DELIVERED: | 11 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 28, 29, 30 April 2014 and 1 and 2 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bowler |
| SOLICITOR FOR THE APPLICANT: | Duncan Basheer Hannon |
| COUNSEL FOR THE RESPONDENT: | Father in Person |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
That all current orders be discharged.
That the father and the mother shall have equal shared parental responsibility for the children namely J PALMER born … 2001 and M PALMER born ... 2005 (“the children”).
That each parent shall be responsible for making decisions concerning the day to day care of the children when they are living with either of them.
That the parties consult and obtain written agreement from the other parent prior to making decisions about all major long term issues in relation to the children including but not limited to:-
(a) The children’s schooling;
(b) Significant matters affecting the children’s health and medical treatment;
(c) The children’s religion.
That the children shall live with the mother at all times SAVE as specifically provided hereunder:-
(a)Until … August 2016 or at such later time as the children shall relocate from Australia to the United Kingdom the children shall live with the father at such times as are agreed but in default of agreement as follows:-
(i)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday;
(ii)For one half of all end of term school holidays at such times as are agreed but in default of agreement:-
1. The children shall live with the mother for the first half of the said holiday period; and
2. The children shall live with the father for the second half of the said holiday period;
AND for the purpose of determining the same, school holidays (including Christmas school holidays) shall be deemed to commence at the conclusion of school on the last day of term and conclude at 12 noon on the Sunday immediately preceding the new school term.
(iii)The children shall live with the father for the first half of the said Christmas holiday period PROVIDED that if the father is not able to spend time with the children for any extended period arising out of his work commitments THEN for the balance of his time (restricted to the first half of the holiday period) the children shall spend time with him pursuant to paragraph 5 (a) (i) herein; and
(iv)The children shall live with the mother for the second half of the said holiday period.
(b) The children shall live with the mother at Christmas as follows:-
(i)From 3.30pm on Christmas Eve until 3.30pm on Christmas Day in 2014 and each alternate year thereafter; and
(ii)From 3.30pm on Christmas Day until 3.30pm on Boxing Day in 2015 and each alternate year thereafter.
(c) The children shall live with the father at Christmas as follows:-
(i)From 3.30pm on Christmas Day until 3.30pm on Boxing Day in the year 2014 and each alternate year thereafter; and
(ii)From 3.30pm on Christmas Eve until 3.30pm on Christmas Day in 2015 and each alternate year thereafter.
(d)The children shall live with each parent for the Easter long weekend as follows:-
(i)With the mother from the conclusion of school on Maundy Thursday (or 5pm if a non-school day) until 10am on Easter Sunday in the year 2015 and each alternate year thereafter;
(ii)With the mother from 10am Easter Sunday to the commencement of school on Tuesday (or 10am Tuesday if a non-school day) in the year 2016 and each alternate year thereafter;
(iii)With the father from 10am Easter Sunday to the commencement of school on Tuesday (or 10am Tuesday if a non-school day) in the year 2015 and each alternate year thereafter;
(iv)With the father from the conclusion of school on Maundy Thursday (or 5pm if a non-school day) until 10am on Easter Sunday in the year 2016 and each alternate year thereafter.
(e)The children shall spend time with the parent that does not have the children living with them on the children’s birthdays as follows:-
(i)If a school day, from the conclusion of school until 6.30pm;
(ii)If a non-school day, from 1pm until 6pm.
(f)The children shall be with the father on Father’s Day from 9am until 6pm and the children shall be with the mother on Mother’s Day from 9am until 6pm.
The parties shall be at liberty to take the children overseas and out of the Commonwealth of Australia during any period that these orders provide for the children to spend time with either of them and such other period as the parties may agree PROVIDED that the party requesting to take the children overseas shall give forty two (42) days written notice to the other party and shall provide the other parent with the following information:-
(i)Any itinerary;
(ii)Contact details during the holiday period.
In default of agreement handovers that do not take place to and from the children’s school shall be effected by the parent with whom the children are not living to collect the children from the home of the other parent.
That the parties shall communicate by way of email as the primary form of communication in respect of information relating to the children.
Each party shall forthwith inform the other of any serious illness or injury sustained by the children whilst in their care.
Each party shall provide the other with any particulars of any treatment required or received by the children together with the name and address of the treatment provider and/or location at which the children or each of them may be a patient.
Each party shall provide the other with any prescriptions or prescribed medications for the children and the other parent shall administer those medications appropriately.
That in the event the children are invited to a party or other special occasion at a time when the children are to spend time with the other parent THEN that parent shall forthwith upon receiving such information provide the other parent with a copy of the invitation to enable the children and the parent to respond to the said invitation.
Each party shall forthwith upon receiving notification of any school or extra-curricular special event including but not limited to concerts, parent teacher interviews, excursions and camps, shall advise the other party in a timely fashion with appropriate information.
The parties shall do all things necessary to ensure that the school will provide each of them with a copy of the children’s school reports or alternatively, that will enable each of the parties to contact the said children school independently to obtain relevant information.
That as and from … August 2016 the mother is at liberty to remove the children from the Commonwealth of Australia and they be permitted to relocate to the United Kingdom.
That no later than 15 March 2016 the parties and the children do re-attend Ms H or such other child psychologist as may be agreed to ascertain and consider the wishes of the children and any change in their circumstances.
That the parties will do all such things and sign all such documents as may be necessary to give effect to the relocation of the children pursuant to paragraph 15 hereof.
That upon the children taking up residence in the United Kingdom they shall live with the mother at all times SAVE as specifically provided hereunder.
The children shall live with the father as follows:-
(a)For a period of four (4) weeks to coincide with the UK summer holidays with such time to be taken at the election of the father in Australia and in such case subject to the following conditions:-
(i)That the travel expenses in respect of the said children shall be shared equally between the parties;
(ii)That if the children are required to be accompanied THEN either the mother or an adult nominated by her shall travel with and accompany the children to and from Australia and the United Kingdom with the expense of the accompanying person to be borne solely by the mother.
(b)For a three (3) week period to coincide with the UK Christmas holiday period with such time to be taken in the United Kingdom and at the sole expense of the father PROVIDED that if the time taken by him includes Christmas Day THEN the father’s time shall be suspended for a period of five (5) hours from 10am until 3pm on Christmas Day.
(c)Such other time as the parties may agree PROVIDED that in relation to the time that the children are to spend with the father pursuant to paragraph 19 (a) and (b) hereof the father shall give sixty (60) days notice of his intention to spend time with the children either in the United Kingdom or in Australia.
That paragraph 15 herein is conditional on the mother:-
(a) Serving on the father documentary proof:-
(i)That she has obtained from a Court of competent jurisdiction in the United Kingdom recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“the Child Protection Convention”) of the orders of the Family Court of Australia made in these proceedings; or
(ii)That she has obtained from a Court of competent jurisdiction in the United Kingdom a Declaration of Enforceability in the United Kingdom pursuant to Article 26 of the said Child Protection Convention of the orders made in the Family Court of Australia and of these orders; or
(iii)That she has registered in a Court of competent jurisdiction in the United Kingdom pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Australia and these orders, she will be entitled to remove the children from Australia at the expiration of seven (7) days from the date upon which the documentary proof has been served on the father but in any event not before 15 August 2016.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
That in full and final settlement of any claim that either party may have against the other for settlement property or alteration of interests in property pursuant to Part VIIAB of the Family Law Act 1975 (as amended):-
(a)That on or before the elapse of three (3) calendar months from the date of this order the father do pay to the Trust Account of DBH Family Lawyers for and on behalf of the mother the settlement sum of ONE HUNDRED AND EIGHT THOUSAND TWO HUNDRED AND NINETY SEVEN DOLLARS ($108,297);
(b)That the father shall indemnify the mother in respect of the outstanding mortgage liability in relation to Flats 6 and 7, Town B;
(c)That the mother shall indemnify the father in respect of the outstanding liability on her Barclay Card;
(d)To the extent that it may be necessary, the father shall do all things necessary to transfer his interest in the 2011 Holden … motor vehicle to the mother to the extent that he shall have no further right or entitlement therein;
(e)That the parties shall otherwise retain all of their property in their possession free from any claim by the other including their superannuation and/or pension entitlements;
(f)That each party shall do all things and sign all such necessary documents to give effect to the terms of this order;
(g)That each party do release the other from any liability for any claim that either one may have against the other AND the parties do discharge their several debts and liabilities without calling upon the other to contribute (including any income tax liability assessed in their respective names) AND the father and the mother agree that neither of them will hereafter pledge the credit of the other;
(h)That in default of the payment of the said settlement sum in paragraph 22 hereof and should such default continue for more than thirty (30) days THEN and in that case the property situate at Flat 7, Town B in the United Kingdom shall be forthwith placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in default of agreement as ordered by this Honourable Court AND following the payment out of the necessary costs of sale, the net proceeds shall be used to pay the settlement sum outstanding to the mother together with default interest at the rate of 10 per centum per annum and the balance if any to the father.
(i)That until settlement of property has been effected and the mother has received the settlement sum in full, the father be restrained and an injunction granted restraining him from selling or disposing of the property situate at Flat 7, Town B in the United Kingdom SAVE AND EXCEPT as may be necessary to fulfil the terms and conditions of this order.
As and from 30 June 2014, that the father shall pay child support for J PALMER born … 2001 in the sum of NINETY FIVE DOLLARS ($95) per week until such time as the said child shall relocate to the United Kingdom in which case the order shall be discharged with no further obligation SAVE as to any arrears of child maintenance.
That all matters be removed from the Active Pending List of Cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Styles & Palmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: ADC 4906 of 2012
| Ms Styles |
Applicant
And
| Mr Palmer |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed in the Federal Magistrates Court (as it then was) on 21 December 2012, Ms Styles (“the mother”) sought parenting orders in respect of the children J PALMER born in 2001 (“J”) and M PALMER born in 2005 (“M”) (“the children”) and in addition, orders for property settlement and alteration of property interests following a relationship of about ten years. In respect of the child J the mother seeks an order that the father pay child maintenance.
A summary of the orders sought by the mother are as follows:-
(1)That the mother be permitted to relocate with the children to the United Kingdom (“UK”) on or after 1 July 2013.
(2)That upon relocation the children spend time with the father during school terms at times to be agreed, for two thirds of the children’s mid-term school holidays subject to appropriate notice being given and that the time shall be taken in the UK.
(3)For three weeks during the children’s summer school holidays and with appropriate notice and, at the election of the father, such time to be taken in Australia.
(4)That the children will travel unaccompanied between the UK and Australia for the purpose of the time that the father may take with the children.
(5)That in respect of any travel to Australia the father shall bear the cost of same.
(6)That by way of child maintenance the father shall pay either a lump sum amount as determined by the Court or a periodic sum that shall be equal to the difference between the amount the father is assessed by the Child Support Agency by way of child support for the child M and the amount that would be payable if J was an eligible child under the Child Support (Assessment) Act1989 (Cth).
(7)That by way of settlement of property, the father do pay to the mother a settlement sum necessary to equalise the net asset position of the parties.
The mother’s position changed and in final submissions, the mother’s counsel put forward the following further proposal:-
(1)That the children could spend two and a half weeks during the mid- school holidays which would include the UK Christmas save for a few hours.
(2)During the UK long summer holidays for four weeks (to be taken in Australia at the election of the father).
(3)That if the children are not able to travel unaccompanied between the UK and Australia then the mother will accompany the children at her cost and would share equally in the costs of the children’s travel.
Whilst it could not be said that the mother was prepared to contemplate any other orders, if it was the Court’s position that the mother should be able to relocate the children to the UK but that the implementation of such an order should be delayed, then any such delay contemplated should be limited to no more than one calendar year.
The timing of the implementation of any order that would allow relocation to take place should take into account that the beginning of the academic year commences as and from the month of August.
Mr Palmer (“the father”) filed an Amended Response to the Initiating Application on 23 April 2014, five days prior to the commencement of the proceedings.
The orders sought by the father are as follows:-
(1)That the parties have equal shared parental responsibility for the children of the relationship.
(2)That the parties consult as to all major long term issues.
(3)That the children live with the mother.
(4)That the children spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (with such time to be extended if a public holiday or a pupil free day coincides with the time that the children spend with him).
(5)Each Wednesday from the conclusion of school until the commencement of school on the following day.
(6)That the children shall live with each parent for one half of all school term holidays.
(7)That during Christmas school holidays the children spend one week with the father as agreed but in default, from 9am on 2 January until 5pm on 9 January each year and thereafter, each alternate weekend from Friday until Monday and each Wednesday overnight.
(8)Christmas Eve, Christmas Day and Boxing Day to be shared on an alternating basis with the mother.
(9)Easter to be shared between the parties in each year.
(10)That the children spend time with the father on specified special occasions.
(11)That the parties be permitted to take the children overseas for a continuous period of 21 days.
(12)Appropriate provisions by way of communication (email), health issues and school and health arrangements.
At the time of the father filing his Response, he was not able to properly particularise the orders he sought by way of property settlement and reserved to the conclusion of the evidence to do so.
At trial, the father did not significantly alter the orders that he sought but in final submissions proposed that following a determination of the property pool, there should be a division reflecting an 80 per cent adjustment in his favour and 20 per cent to the mother. The father would pay to the mother via the trust account of her solicitors the settlement sum as calculated. The proposed adjustment was based upon the father’s assessment of the respective contributions between the parties, but also because he had explored his ability to raise funds and his borrowing capacity is limited to about $50,000. The father would wish to retain the interest in property that he currently holds rather than the sale of the UK properties.
By way of child maintenance for the child J, his proposal is that for so long as the children remain in Australia he will pay their private school fees and in addition to the child support for the child M, a further sum of about $95 per week.
If the children are able to relocate to the United Kingdom then the father will not make any contribution to private school fees and will not pay any child maintenance in respect of J on the basis that the mother should pursue the natural father in the United Kingdom. If child support in respect of M continues to be assessed, notwithstanding the relocation of the children to the United Kingdom then the father will obviously continue those periodic payments.
As part of the final submissions made on behalf of the mother, she conceded that the parties had agreed to an order for equal shared parental responsibility. The communication between them was considered adequate notwithstanding some level of conflict and hostility engendered by the proceedings.
Obviously the father does not speak against such an order and I propose to make that order in any event but not without comment.
The trial commenced before me on 28 April 2014. The mother was represented by counsel. The father was self-represented.
The matter was stood down briefly to enable the parties to explore an agreement as to the property interests held by each of them. Ultimately, the parties were able to agree a schedule of assets and liabilities and that document was tendered and became “Exhibit 5” in the proceedings.
The mother relied upon the following documents:-
(1)Amended Initiating Application filed 21 December 2012.
(2)Trial Affidavit of mother filed 7 March 2014.
(3)Financial Statement filed 21 December 2012.
(4)Affidavit of Mr G filed 6 March 2014.
(5)Affidavit of the maternal grandfather filed 11 March 2014.
(6)Affidavit of the maternal grandmother filed 11 March 2014.
In addition the report of clinical psychologist Ms H dated 22 December 2013 was introduced into evidence under cover of an affidavit of the mother’s solicitor Arthur Koufalas filed 7 April 2014.
The father relied upon the following documents:-
(1)Response to Initiating Application filed 23 April 2014.
(2)Trial Affidavit of father filed 15 April 2014.
(3)Affidavit of Ms K filed 15 April 2014.
(4)Financial Statement of the father filed 15 April 2014.
It is convenient at this point to note that whilst the father did not rely upon an earlier Affidavit filed 22 January 2013, there was significant focus on that document by counsel for the mother during the cross-examination of the father and it was agreed that document should be generally before me.
At the commencement of the proceedings I advised counsel that I was cognisant of the provisions of Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and I was careful to explain to the father as a self-represented litigant the directions as to practice and procedure as set out comprehensively by the Full Court in the decision of Re F: Litigant in Person Guidelines (2001) FLC 93-072.
The relevance of that decision in the current proceedings had some focus in that at the commencement of the hearing the mother sought to interpose her witness Mr G. There was also a possibility that the psychologist Ms H may not be able to give her evidence at a time following the conclusion of the substantive evidence of the parties.
I am satisfied that the father was given an opportunity to consider the decision and on each occasion that he was obliged to consider whether a witness should be interposed, his consent was informed.
In any event I made it clear to the father that if any situation or circumstance arose on the evidence that could have resulted in any unfairness being occasioned to him, I would favourably consider the calling of rebuttal evidence if necessary.
Prior to the commencement of evidence, I raised with counsel and the father that some consideration may need to be given to the following:-
(1)If an order is made for the relocation of the children whether in that circumstance I should make reference to the provisions of the 1996 Hague Protection Convention. The provisions of the Convention may assist in the enforcement of any order I may make by way of automatic recognition in the contracting State (in this case the United Kingdom) or by way of “advance recognition”. Once an order or more properly “a foreign measure” is registered it has the same force and effect as if it were an order made in the contracting jurisdiction.
The complexity arises as to the extent that the order or “foreign measure” is subject to the law of the contracting State and therefore the ability of the mother to seek a variation or change to the order.
(2)To the extent that it is necessary to make appropriate provision, whether any order that I may make for child maintenance pursuant to Section 66M of the Act and the ancillary question as to the extent to which the mother should be required to pursue the biological father of the child J who apparently resides in the United Kingdom (if I allow for the relocation of the children).
(3)The extent to which any order for property settlement that involves the payment of a settlement sum by the father to the mother can be enforced and if so, in what manner and to what effect against the property situate in the United Kingdom which the father seeks to retain.
Counsel and the father were reminded of these matters throughout the proceedings. To the extent that it was necessary to do so, I raised with counsel and the husband their attitude to whether the provisions of Section 69ZT should be dispensed with namely the Evidence Act 1995(Cth) should have application.
There were no significant or relevant allegations of family violence, nor was there alleged by the mother that the children were the subject of any abuse or other adverse behaviour by him.
Section 69ZT (3) requires that before I should dispense with its’ provisions I be satisfied that the circumstances are exceptional and I should have regard to the following matters:-
i)The importance of evidence in the proceedings;
ii)The nature of the subject matter of the proceedings;
iii)The probative value of the evidence; and
iv)The power of the Court (if any) to adjourn the hearing to make another order or to give a direction in relation to the evidence.
I do not consider that there are any circumstances in this case which would fall into the category of “exceptional”. Given the concession by the mother that the parties should have equal shared parental responsibility and that subject to the mother being permitted to relocate the residence of the children to the United Kingdom, there would be no real impediment (other than the tyranny of distance) to the children spending significant and substantial time with the father either in the United Kingdom or in Australia.
CHRONOLOGY
1973 Date of birth of father
1978 Date of birth of mother
2001Date of birth of J (now aged 12 years 10 months)
9.8.2002Commencement of cohabitation
2003The father purchases the properties at Flats 6 and 7, Town B
6.2.2004The father receives £115,112 from sale of property owned with his former wife
Dec 2004Parties change J’s family name from “Styles” to “Palmer”
2005Date of birth of M (now aged nine years)
June 2005Father purchases property at Town F for £219,000. Borrows £180,500 and mother contributes £4,000
19.8.2010Parties and children move to live in Australia and children commence school at W School
Oct 2010Father commences employment with L Pty Ltd
Feb 2011Mother commences health profession studies
May 2011Father commences employment with B Company
19.5.2012Parties separate and mother leaves former matrimonial home with children
July 2012Father leaves position of employment and recommences employment with L Pty Ltd
20.12.2012Proceedings commenced by mother with a subsequent Response filed by father
June 2013Father sells property at Town F and disperses the net proceeds of $282,500 and uses those proceeds to discharge the outstanding mortgages on both the subject property and the Town B properties, with the balance being used for outstanding school fees and to pay the father’s legal fees to his solicitor
1.7.2013Mother informs the child J that the father is not his biological father
BACKGROUND
The mother is 35 years of age and presently has employment as a part-time cleaner. Whilst her physical health is satisfactory, it is her position that she suffers significant disability by reason of depression brought about by loneliness. She pines for the company of her family but in particular her parents and her sister. It is a significant issue in the proceedings as to what weight I can place on the mother’s evidence as to her level of dysfunction and general unhappiness in circumstances where no objective evidence was placed before the Court.
The father is 40 years of age and has secure and well paid employment as a manager. His health is good. He does not wish to return to the United Kingdom. He has formed a relationship with an ex-work colleague and there appears significant commitment.
The child J is a child from a previous relationship of the mother. The parties are in agreement that he was raised to believe that the father in these proceedings was his only father. It is only of relatively recent date and arising out of the direct conflict between the parties that the mother has chosen to inform the child of his parentage.
Somewhat surprisingly it seems that this information may not have occasioned the level of distress and upset that was originally considered likely. The mother knows of the child’s biological father and historically has encouraged a relationship between the child and the paternal grandparents. It seems that J’s father has no interest in commencing a relationship with him.
The relationship between the parties commenced in August 2002 with J being little more than one year of age. In May 2003 the parties separated and maintained separate residence. The mother attributes the breakdown of the relationship to the father’s inability to form a stable relationship with J. The father’s position is that whilst clearly there were relationship issues, he considers that he always treated J no differently to the relationship he had with M following her birth in 2005. They resumed their relationship in early 2004 and commenced cohabitation in September of that year.
In June 2003 the father purchased Flats 6 and 7, Town B, for a total price of £130,000. The properties were registered in the father’s sole name and were the subject of significant mortgage.
In February 2004 the father received £115,112 by way of property settlement.
Following a resumption of cohabitation, the parties agreed that J’s surname would be changed from “Styles” to “Palmer”.
In June 2005 the father purchased a property at Town F for a purchase price of £219,000 which was part-funded using the balance of the proceeds of the property settlement together with an outstanding mortgage of £180,499.
The mother asserts that she contributed the sum of £4,000 towards the purchase of the home which monies included a gift from her father.
The Town B flats were tenanted and the rent was paid into a bank account controlled by the father. That circumstance continues until the present.
In March 2005 and following the birth of M, the mother gradually returned to the workforce with the maternal grandmother assisting with the care and supervision of the children whilst she was at work.
The mother asserts that she was the primary carer of the children and in addition held part-time jobs which were managed around the children’s school hours.
The mother has a history of employment in the property industry. It is suggested by her that those skills were valuable in terms of the management and administration of the tenants in respect of the Town B property. The father concedes that the mother was the primary homemaker during the course of the relationship, but that where his employment allowed him time to be involved with the care of the children he did so in circumstances where he willingly engaged in the routine care of the children.
The parties discussed the family relocating to Australia and it is the mother’s position that the move would be on a trial basis for about two years. In terms of her presentation to the Court, it is an important factor of her case that she alleges a clear agreement between the parties that if either of them was unhappy with the relocation then at the end of the trial period they would return to the United Kingdom. To the extent that J was old enough to engage in the conversation he did so with the parties understanding that he did not want to move to Australia and on the mother’s case, the child was only placated by the clear understanding that the move would be for a trial period only.
The family arrived in Australia in August 2010. Whilst initially there were difficulties in the father finding employment it is common ground that he did so and it is clear that he was and remains possessed of a high skill set which enabled him to find well paid employment in an area that utilises his skill and expertise.
The mother commenced study in 2011 to train as a health professional. She has placed that course on hold due to the stress of her circumstances including the separation, her loneliness at having to remain in Australia and separation from her family together with financial pressures.
Whilst she has undertaken part-time cleaning work it is not well paid and generally would not enable the mother to support the children herself and return to her studies.
There is an hiatus in the evidence as to whether it is the financial issue that would see the mother not being able to complete her studies or whether her inability to do so is a genuine sequelae of her psychological functioning, emotional distress and on her case, her depression.
The parties experienced unhappy differences leading up to their separation on 19 May 2012. The circumstances of the separation were acrimonious. The maternal grandmother had been staying with the parties at this time. It is alleged that there was aggressive conduct by the father and the mother alleges that the father slapped the maternal grandmother in the face before leaving the house. The father denies the alleged incident. It is common ground that no charges were laid and whilst he apologised to the maternal grandmother for the unpleasantness, there was no concession that he had assaulted her. In any event I do not consider that anything turns on this incident save and except that the maternal grandmother remains opposed to the father, is uncomplimentary of him and is unlikely to be supportive, although not deliberately destructive of, a relationship between the father and the children.
The relationship between the parties post-separation has not been happy. The proceedings are marred with allegation and counter-allegation as to the behaviour of each of the parties towards the other. The mother alleges that the father has been controlling financially, aggressive and hostile. The father’s case is that the mother is not supportive of any relationship between the father and the children and that the mother’s application to relocate the children has nothing to do with her distress and therefore potentially an adverse impact upon the children but rather, to disrupt the father’s relationship with the children.
The father submits that the move to Australia was the subject of detailed and lengthy discussions with both parties agreeing that the opportunities in Australia substantially exceeded those available to the parties in the United Kingdom when accommodation, education for the children and employment opportunities were brought to account.
Consistent with the focus on education, the parties agreed that the children should receive a private school education and accordingly both children were enrolled and are attending W School with M being in Year 3 and J in Year 8.
The father says that the children have developed close relationships with their school mates and enjoy their schooling and their extra-curricular activities.
The father offers the sole responsibility for the payment of the children’s private school fees in Australia as long as he is able to do so. He currently pays child support appropriately assessed in respect of M and pays an additional sum notionally for J by way of a “top up”.
The father has re-partnered with Ms K and he says that she has developed a strong and genuine relationship with the children. Ms K gave evidence and I was able to assess her demeanour and veracity.
The mother remains implacably opposed to continuing to live in Australia and it is unlikely that in the short to medium term the parties will reconcile their differences.
Whilst the allegations of each of the parties against the other have a florid character about them, nonetheless they are able to communicate in a civil and proper manner when dealing with issues of the children. I assume that whatever else is the basis for their dislike of each other, they are able to put aside their differences when the proper parenting of the children requires it to be done. This would seem to be the basis of the parties being able to agree on shared parental responsibility.
PROPOSALS OF THE PARTIES
The proposal of the mother is that she be permitted to return to the United Kingdom with the children before August 2014 which coincides with the commencement of the new academic year.
As discussed, the mother conceives that there should be equal shared parental responsibility. Notwithstanding the adverse matters raised by the mother in respect of the father’s behaviour both during the course of the relationship and perhaps of more moment, following their separation, nonetheless she still considers that it is appropriate for the parties to have genuine and mutual input into the major issues that will affect the children but in particular health, education and religion.
The mother’s plan is that she will initially live with her parents and that thereafter it is likely that she and her parents will purchase a property close to where her sister resides.
The mother proposes that in the area where her sister resides there are three schools which would be suitable for the primary and secondary education of the children. The mother tendered a location map and information memoranda in respect of each of the schools. Whilst I am not able to assess the accuracy of the mother’s assessment that each of the three schools selected by her are “outstanding”, the father did not deny that at the very least they would provide appropriate education for the children.
The children have not been enrolled in any school although I am satisfied that there is placement availability. To a significant degree, the mother’s plans involve an agreed position of her parents that they will sell their house and purchase a new property. Generally speaking, whilst there must of necessity remain uncertainty as to the mother’s plans in the United Kingdom, I am generally satisfied that her parents are highly supportive of the mother and the children.
The mother also proposes to seek employment as an administrative officer in a real estate business for which she had previously worked. The mother sought to rely on correspondence that confirmed if not an actual offer of employment, then it certainly was suggestive of an intention to strongly consider any application that the mother may make for employment. Generally I form the view that it was more likely than not that the mother would find employment and provide an appropriate environment for the children.
Consistent with the orders that she seeks, the mother will facilitate the children spending time with the father in the United Kingdom whenever he is able to attend and not more than once in each year she will travel with the children to Australia to enable them to spend time with their father. She will travel at her own cost but also is prepared to share equally in the children’s costs of travel.
It was obvious that the mother was attempting to be as generous with the time that the children could spend with their father as was possible. Whether it is reasonably practicable is a matter to be further considered.
If the Court does not allow the children to reside in the United Kingdom, the mother’s outlook was significantly more pessimistic. She would continue to abide by the current Orders of 19 February 2013, but she anticipates that when J realises that he is not able to return to the United Kingdom he will become more resistive to spending time with the father. She opines that given his aggressive and wilful manner, it is not a matter that she will be able to easily deal with.
To date and since separation her parents, and in particular the maternal grandmother, have spent significant time in Australia with the mother and the children. It is likely that their financial resources will not necessarily accommodate their ongoing travel to Australia either in terms of frequency or duration and this may see the mother with less family support than currently is the case. On the mother’s case she is already “depressed” and has difficulty in being motivated to seek more remunerative or more rewarding employment. She does not see that position changing in the foreseeable future if she is not permitted to relocate the children.
The father’s proposal remains consistent with the orders that he seeks. Essentially, at present he sees the children for four nights a fortnight during school term. He seeks to extend that to five nights a fortnight. In addition, he seeks that the children spend time with him for one half of all school term holidays with a distinction that during the Christmas school holidays (Australia) they would live with him for a period of one week and thereafter, would revert to the periodic time.
The father has re-partnered with Ms K and he concedes that, at least as is foreseeable, his employment is secure and the income is reasonable. Ms K is also employed.
The children would continue to attend W School and the father concedes that he will commit to the payment of the school fees. It is not controversial that the tuition fees at W School would represent a substantial sum.
The father does not concede that however generous the mother’s proposal might be, that at this stage it is reasonably practicable for him to spend time with the children in the United Kingdom. Whilst he could clearly travel to the United Kingdom, there is a significant expense in doing so and it would be financially impossible for him to afford the accommodation and the expenses likely to be incurred both personally and for the children in circumstances where he would have no support. Moreover, on the mother’s proposal the father would spend time with the children in the United Kingdom during December and January at times when he is only able to take one week leave. Accordingly, on the mother’s proposal the father would see the children for no more than about three weeks in each year subject to the unusual circumstance of the father being able to travel to the United Kingdom.
In short, the mother’s proposal is not considered by the father to be reasonably practicable.
It is useful at this point to set out the options as proposed for consideration by the family consultant Ms H:-
Option 1
That the entire family return to the United Kingdom.
Option 2
That the entire family remain living in Australia.
Option 3
That the mother and the children relocate to the United Kingdom.
EVIDENCE
The Mother
The mother supplemented her affidavit evidence by further evidence given in chief. She agreed that there should be equal shared parental responsibility and better particularised her proposed arrangements if the children were allowed to relocate to the United Kingdom. It was in examination in chief she advised the Court and the father of her intentions to reside with her parents and then ultimately there would be a move to be closer to her sister. Without objection, the mother tendered information relating to proposed schools and a “google” map of the proximity. The mother also gave evidence that she had been increasingly concerned at the wilful and aggressive behaviour being exhibited by J. The mother sought professional assistance from a psychologist and was advised that she should take steps to introduce a male role-model for J and if his behaviour was particularly distressing, it may be useful for J to speak to a police officer. The mother suggested that the idea was “to instil greater respect” for the mother.
She then advised that she had put in place a number of male friends to speak with J and there appeared to be a significant improvement. Of recent date however there was a distressing display of poor behaviour by J and he was taken to see a police officer who was prepared to provide some basic counselling for the child. The mother’s objective observation is that following this interaction there was a marked improvement in J’s behaviour.
The mother asserts that J is very keen to return to the United Kingdom. She says that the family moving to Australia was conditional on all family members being satisfied at the end of a trial period that they were happy to remain. If there was any dissent then serious consideration would need to be given to the family returning to the United Kingdom.
Following separation the mother says that the father was very aggressive towards her, that he was rude and that he engaged in a campaign of intimidation. The amount of physical time spent between the parties is at a minimum. There is communication but it is via email and text messaging. Whilst it is not necessarily representative of the entirety of the communication between the parties, a bundle of text messages forms “Exhibit 4” in the proceedings. It is difficult to ascertain the purpose for which the text messages were tendered in circumstances where the mother concedes shared parental responsibility. Whether the children remain in Australia or are permitted to reside in the United Kingdom, even on the mother’s own case, whatever her misgivings are in respect of the father, she concedes that the children would spend significant and substantial time with the father in Australia (as is currently ordered) or extended block periods of time to be taken in Australia and at the election of the father, in the United Kingdom.
As is always the case with a party seeking to adduce evidence of text messaging, it is difficult to highlight the evidentiary focus of the text information. In a general sense however, whilst some of the messages are hurtful, others accusatory and some mundane, they do demonstrate a reasonable level of civility. Whilst not always complimentary of the other, there is at least some open line of communication.
The mother gave evidence of the father’s behaviour in the last three years of the relationship. It is alleged by her that whilst in the United Kingdom the father may have signed up to a dating website in the United Kingdom. Of more recent date the mother alleges that the father was able to hack into her computer and accessed the mother’s personal information.
The father denied the allegations and cross examined the mother on these matters. I am not able to determine the accuracy of the various allegations made by the mother, nor indeed the weight I should attach to the father’s denials. To a large extent the issues are matters relevant as between the parties in terms of their own ongoing relationship, but are not necessarily to be given significant weight in the current proceedings.
Whilst the mother alleges that the father has behaved aggressively and in an intimidating manner, it was not her submission that the father presented an unacceptable risk to the children or that his behaviour should be categorised as “family violence”.
The central issue for the mother is that:-
She feels isolated and alone living in Adelaide. She does not have the support of any family. The mother’s emotional and psychological wellbeing is suffering as a consequence of continuing to live in Adelaide and she asserts that should be far better able to undertake her parental responsibilities if she was given permission to live with the children in the United Kingdom.
The further extension of that argument is that there is no evidence which would suggest that she would not support a meaningful relationship between the children and their father if they were permitted to relocate.
The mother alleges that the father was not significantly interested in the day to day activities of the children and it is only since separation that he is now trying to form a relationship with the children specifically to stop the mother and the children from relocating.
It was put to the mother than when J was acting aggressively she did not advise the father of the child’s behaviour. The mother’s response was that she did not keep the father informed because of her perception that he was not prepared to support her.
The father gave the mother an occasion when following a bullying incident involving J that he left work and attended on the mother and the child. The mother agreed that the father had done so.
In summary, the mother’s evidence is that the father is not a positive role model to J, was physically violent to the mother, that he did not respect her and his behaviour generally in the home was such that the children formed the view that they were not obliged to respect the mother.
When challenged by the father in cross examination, I formed the view that the mother was embellishing the more extreme allegations but accept that the mother was the primary carer of the children and the father’s involvement in the parenting of them was at the lower end of the scale but to a large degree dictated by the circumstances of his employment.
I do not necessarily accept the mother’s evidence that the father was not a good role model.
As an example of the unreasonable behaviour of the father, the mother focused on an incident involving the Holden motor vehicle on Wednesday 12 December 2012. The mother was intending to take the children on a driving holiday and was in the process of packing the car. The father, who had become frustrated at the refusal of the mother to deliver up the car or on his evidence to consider a motor vehicle swap, turned up unannounced and using a spare key attempted to take the motor vehicle. The police were called and I am satisfied that the circumstances were distressing for all. The mother alleges that the children were so upset by the father’s behaviour that they expressed a wish not to see their father. J was apparently more affected than M.
It was only some weeks later that the mother says she attempted to reunite the children and the father by urging him to apologise to him for his behaviour. On her case, the father was not prepared to do that. It is regrettable but the children did not see the father for a period of a month. The father put to the mother that she knew the car needed to be returned given its finance commitment and that she was not prepared to acknowledge that the father had made a perfectly alternative proposal namely, that she could retain the other family car which was without finance. In relation to the children, the father put to the mother that every time he attempted to see them the mother made sure that the children were not available.
In response, the mother’s position is that M was taken to the father’s home for his birthday without any obligation or requirement to do so.
The children were unfortunately embroiled in the dispute between the parties over the Christmas period. The mother’s position is that the children did not want to see the father, the father’s position is that the mother did all that she could to stand in the way of that happening. Notwithstanding, when the children did attend on the father on 25 December 2012, J was difficult notwithstanding the father’s best attempts to talk to him.
It was put to the mother that the father had tried to see the children on 27, 28 and 29 December 2012. The mother denied the allegation. I do not believe the mother on this point.
I do however consider that the father’s actions in respect of seeking the return of the vehicle were unreasonable and likely to and did cause significant distress for the children. Whatever the correct position was, as soon as the father made the observation that the car was packed with the children’s belongings for the purpose of a holiday, it would have been obvious to him that he should not take the matter further at that stage.
The father clearly overreacted and his actions were ill-considered and overly dramatic. The mother for her part took little or no steps to explain matters to the children and to attempt to put the event into context. At that point it suited the mother to have the children anxious and distressed at their father and unwilling to see him.
Neither of the parties steep themselves in glory over their behaviour.
To the extent that this incident has relevance to the proceedings, it must resonate within a determination of whether I can accept that the mother will support a meaningful relationship with the father, particularly if that relationship is tested by distance.
An unfortunate aspect of the mother’s evidence focused on the manner in which J learned of his parentage.
The mother conceded readily that J’s biological father had almost no contact with J throughout the child’s life. As far as J was concerned, the father in these proceedings was his father. Whilst the mother alleges that the father demonstrated a clear preference for M and that the child’s realisation of this is at least a part explanation for his aggressive and oppositional behaviour, nonetheless I accept that on the current evidence there is no basis for me to find that the father was either preferential in his treatment of the children in favour of M or that he is not interested in their activities and development.
The father did not want J to know that he was not his biological father. It was put to the mother that there had been an agreement that J would be told later in life. The mother agreed that this was the case but she alleges that the father threatened to tell J that he was not his biological child and had said to J words to the effect of “your Mum has told you the biggest lie of your life”.
The mother instructed a child psychologist to engage with the child in order to assist with his anger and oppositional behaviour. Allegedly acting on the advice of the psychologist, and because the mother perceived that the father was not interested in engaging with her on the issue, she decided that she would tell the child the truth of his parentage.
The father was clearly upset and it was put to the mother that J was informed in the manner that was spiteful.
Whilst the mother made a denial to the father’s assertion, I am nonetheless of the view that there was no compelling circumstances for the mother to tell J of his parentage.
As matters have transpired, and perhaps surprisingly to all those involved, J seems less adversely affected than what was thought likely. Nonetheless, circumstances surrounding this issue detract from the confidence that I have that the mother is supportive of a meaningful relationship between the children and their father.
To her credit however, the mother concedes that there is a good relationship with M but it is lacking in terms of J, although even she concedes that the relationship appears to be improving.
The mother also alleges that the father is not transparent in his arrangements with respect to the children and refuses to provide her with details of travel arrangements when the children are with him.
There is significant evidence before the Court of heated exchanges between the parties as to the respective proposals of each of them to take the children on a travelling holiday. A good example of the extent of dysfunction in their communication on this topic is to be found at paragraph 200 of the mother’s trial affidavit filed 7 March 2014. The father agrees that the exchange took place but he put to the mother that the extent of information that she required was onerous and difficult to provide if it was not the father’s intention to pre-book each and every step of the journey with the children.
Again, the interchange between the parties is not so much dependent upon the accuracy of the detail but rather, the tenor of the conversation and what at times might be described as barely restrained civility. Whilst it is always difficult for a party to be cross examined by their former partner, nonetheless in this case the emotion and demeanour of each of them was instructive of the difficulty that they have in dealing with each other at times.
Given the agreement reached between the parties as to the construction of the schedule of assets and liabilities of the parties, there did not appear to be any significant disagreement as to the history of the matter but in particular the contributions of the father held by him at the commencement of the relationship.
Whilst there were potentially issues of significance raised by the mother in terms of the father’s behaviour relating to the disposal of property without advice to her, I consider they have little relevance to the matters that I need to decide.
I was generally satisfied that the mother gave her evidence truthfully and where I formed the view that her evidence was exaggerated, I consider it a reflection of her emotional distress rather than a deliberate intent to deceive.
The mother impressed as being anxious and upset at having to remain in Australia. She demonstrably has a good relationship with her family and she misses their company and comfort. That emotional overlay is likely to have coloured her evidence.
Mr G
The evidence of Mr G was in the end of little or no assistance. He was called to attempt to speak against a notional liability that the father wished to include in the pool namely, any capital gains tax that would arise if the properties in the United Kingdom were required to be sold either by agreement or by order. Mr G did not hold himself out to be a witness on capital gains tax and other taxation imposition in the United Kingdom. Rather, he conceded that the matters contained in his affidavit of 6 March 2014 where they related to the likely taxation consequences of the sale of property in the United Kingdom, is information from an accountant resident in the United Kingdom.
In any event, the agreement of the parties in concluding the asset pool renders the evidence of this witness of no assistance.
It was possible that the fact that Mr G had been in a prior relationship with the mother and at the very least was now prepared to provide her with some support could have been a relevant consideration. Mr G however does not live in South Australia any longer and whilst I am satisfied that he maintains a friendly relationship with the mother and is supportive of her generally, his involvement is of little relevance to the proceedings.
I give real weight to the contribution of the mother in her capacity as a homemaker, the modest sum contributed to the purchase of the Town F property and her care of the children following separation.
SECTION 90SF (3)
Section 90SM (4) (e) requires that I consider factors that may be relevant pursuant to section 90SF (3).
The father is currently in well paid employment with an annual income of about $97,000. He also receives employment benefits being superannuation of $8,730 and 17.5 per cent leave loading on his annual leave entitlements which total 20 days per annum. The father also has the use of a company car.
The mother is employed as a part-time cleaner and she earns about $8,000 per annum. Her income is supplemented by the child support paid by the father, government allowance and benefit and, from time to time, significant sums gifted or loaned by her parents.
There was no evidence presented which was suggestive of any impediment to the mother looking for more remunerative employment. She is clearly a person with a significant skill set and on her own evidence, she is confident of well- paid employment in the United Kingdom.
The mother is not confident of her ability to find and maintain employment in Australia, such is her currently depressed state of mind.
The mother will remain in Australia for at least the next two years. Thereafter, if she elects to return to the United Kingdom, on her own case I should assume that she will have well-paid employment.
The asset pool is modest.
Both parties enjoy reasonable health, although the mother feels she has an emotional impediment to being able to find employment whilst she is required to remain living in Australia.
The father has agreed that he should fund the private school fees in respect of the children for at least the next two years. That is a significant sum, but the payment of those fees is a matter supported by the mother.
Accordingly, and taking into account their respective circumstances, I find there should be an adjustment in favour of the mother of 12.5 per cent.
The father is therefore to retain 62.5 per cent of the pool (including his superannuation) and the mother is to retain 37.5 per cent.
The mother therefore is entitled to a settlement of $121,697, but taking into account that she retains the Holden motor vehicle at $12,000, the Aegon Pension at $2,000, but retains the Barclay card liability, she retains total property to the sum of $13,400 which would require the father to pay a settlement sum of $108,297.
The father would wish to explore whether he could borrow money sufficient to retain the flats in Town B.
I appreciate that other than any ability (no evidence presented) of the option of surrendering the endowment and pension entitlements in the United Kingdom, one of the Town B properties is likely to be sold to satisfy the order.
Given the circumstances, I think it is reasonable that the father have three calendar months to pay the settlement sum in default of which the property at Flat 7, Town B will be placed on the market for sale.
CHILD MAINTENANCE
The mother seeks an order that the father pay child maintenance for the infant child J, born in 2001.
The order sought is in the following terms:-
8.That pursuant to Section 66G and 66M of the Family Law Act 1975 the father do pay to the mother child maintenance in relation to the child [J] by way of either:-
8.1A lump sum amount as determined appropriate by the Court;
8.2An amount equal to the difference between the amount that the father is assessed by the Child Support Agency to pay the mother by way of child support for the child [M] and the amount that the father would otherwise have been assessed by the Child Support Agency to pay for both [M] and [J], should [J] have been an eligible child as defined in the Child Support (Assessment) Act 1989.
At the conclusion of the proceedings, there was a concession that the mother sought a periodic sum rather than a lump sum. There was no attempt made in any event by the mother to quantify the extent of a lump sum nor indeed would such an order have been warranted in circumstances where there was no real complaint as to the manner in which the father had paid child support pursuant to an assessment in respect of the child M.
Section 66D of the Act sets out the principles that are required to be satisfied to establish when a step-parent has a duty to maintain a child:-
Section 66D (1)
The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a Court, by order under Section 66M, determines that it is proper for the step-parent to have that duty.
Section 66D (2)
Any duty of a step-parent to maintain a step-child:-
(a)Is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b)Does not derogate from the primary duty of the parents to maintain the child.
Section 66M provides:-
Section 66M (1)
As stated in Section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this Section.
Section 66M (2)
A Court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
Section 66M (3)
In making an order under Sub-section (2), the Court must have regard to these (and no other) matters:-
(a)The matters referred to in Section 60F, 66B and 66C; and
(b)The length and circumstance of the marriage to, or relationship with, the relevant parents of the child; and
(c)The relationship that has existed between the step-parent and the child; and
(d)The arrangements that have existed for the maintenance of the child; and
(e)Any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any other person.
Section 66N provides a direction as to the termination of the financial contribution that should be the subject of an order:-
Section 66N
In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the Court must take into account:-
(a)The matters referred to in Sections 60F, 66B, 66C, 66D and 66K; and
(b)The extent to which the primary duty of the parents to maintain the child is being and can be fulfilled.
The mother is aware of the identity of the biological father of J.
The child was born one year before the parties commenced cohabitation.
There was a clear intention that J would be treated as a child of the relationship as evidenced by the actions of the parties necessary to cause J’s family name to be changed from Styles to Palmer.
Throughout the course of the relationship and certainly up until May 2012 being the date of separation, it is common ground that J’s biological father provided no financial support for the child. It is also the case that J has not spent any time with his biological father and once he was told of his parentage following separation, the child has shown little or no interest in his father. For all intents and purposes J identifies completely and entirely with the father in these proceedings. Relevantly, the father’s position is to support that approach and he strongly asserted that he has always treated J no differently to M and would continue to do so in the future.
The father promotes his relationship with J and strongly opposes the mother’s relocation of the children to the United Kingdom.
Whilst there is no evidence of the efforts made by the mother to seek support from J’s father, such action is not in any event promoted by the father save and except in the circumstances that J would relocate to the United Kingdom.
Certainly, for the entire period that J is to remain in Australia whether that be pursuant to these orders or by some different arrangement that the parties may come to, the father has expressed a willingness to provide appropriately for the child.
It may be an issue as to whether the father has capacity to meet any order but at first instance I do not consider that the mother is not entitled to seek an order in terms of reliance on Section 66D (2) (a). But for the father’s willingness, that may have been an issue but it is not a matter that I need to have regard to in the present circumstances.
Accordingly, I find that it is proper for the father in these proceedings to have a duty to maintain J notwithstanding he is a step-child.
In determining the extent of the financial contribution of the father, I must have regard to the matters set out in Part VII Division 7 namely Section 60F, 66B, 66C, 66D and 66K of the Act.
ASSESSMENT OF MAINTENANCE
The mother’s position in respect of the extent of financial support sought from the father is somewhat confused. The extent of maintenance that the mother seeks to be paid by the father in respect of J has been calculated by reference to the notional assessment that would generate.
Even that approach was problematic. Little assistance was given until the matter was raised by me whereupon a calculation was undertaken by reference to the relevant child support formula. The document forms “Exhibit 12” but essentially provides that on a taxable income of $97,000 together with foreign income of $12,000, the assessment should be based on a child support income of $109,000 as to the father and $20,000 as to the mother.
The difficulty is that whilst there is a concession as to the father’s taxable income in the sum of $97,000, to this sum the mother includes foreign income of $12,000 emanating from the Town B flats. Accordingly, the adjusted taxable income for the purposes of the equation is $109,000. This produces a notional child support assessment for two children of $14,870 per year or $570 per fortnight.
The father’s position is that the child support assessment in respect of the child M results in an assessment of $401 per fortnight. The difference therefore is approximately $170 per fortnight or $85 per week. To date the father has been paying $572 per fortnight or an additional amount over and above the assessment of $171.
It is the father’s position that he will continue to pay this additional sum for so long as J remains living in Australia.
As has been noted, the father also pays a significant proportion towards the private school fees of the children and he has indicated his intention to meet the entirety of the school fees until and unless the children relocate to the United Kingdom.
To some extent the parties are in heated agreement in respect of the extent of the father’s liability for child maintenance in respect of J.
In the marriage of Beck & Sliwka (1992) FLC 92-296 the Court had to consider the relevance of a Stage 2 Assessment in the determination of a Stage 1 Case. The Full Court held:-
It is not, in our view, open to this Court to conclude that the Stage 2 formula can be directly applied to a Stage 1 case. Although in cases of this sort the distinction between pre and post 1 October 1989 may appear artificial, the fact is that the Stage 2 Legislation is prospective only in its operation. In addition, there are a number of structural differences of importance between Stage 1 and Stage 2 and we have briefly referred to some of them. They include the basis upon which the percentages were set, the concentration on income only and the different treatment of the custodian’s income and the ages of the children. Whilst a very small number of appeals under Section 117 of the Assessment Act is significant that may in part be due to the cost of legal representation which may discourage some appeals.
Counsel for the wife recognised these differences and did not put his submissions in that way. He submitted that guidance can be obtained in many Stage 1 cases by a consideration of the actual experience under Stage 2 of the capacity of the non-custodian as to pay at various income levels. Whilst it must be emphasised that under the Family Law Act the Court is required to consider the facts of the individual case in accordance with the structure in Division 6, nevertheless in the sort of case with which we are concerned now, and which is not untypical of many cases litigated both in this Court and in the Magistrates Court, and where the issue is the capacity of the non-custodian to make an equitable contribution to the costs of children, it seems not unreasonable to at least pay regard to the formula in determining the amount of the Stage 1 Order. While the two separate stages as established by the parliament must be considered to be recognised, nevertheless many cases falling either side of the line have virtually identical features and in those cases assistance may be usefully obtained in Stage 1 cases by reference to Stage 2 outcomes.
Accordingly, whilst it is not appropriate to simply apply the child support formula it is a cross check and balance.
The only information as to the costs of the children is to be gleaned from the financial statement of the mother filed 21 December 2012. Part N of that document sets out the expenses attributed by the mother to the children. The total is $322 per week or $644 per fortnight.
The father did not cross-examine the mother in respect of those expenses and accordingly there is no evidence which would challenge the individual items of expenditure as asserted by her. To some extent I consider that the document speaks for itself in terms of those areas that are likely to be a reasonable reflection of the children’s expenses and those that may have a level of inflation about them.
In particular, I note that an item of expenditure relating to gifts in the sum of $30 per week seems somewhat generous.
Having said that, the figures were relevant as far as the mother was concerned at the date she swore the document being December 2012 and at least 16 months has now elapsed since that time. It is reasonable that there would have been upward movement in the children’s expenses, but there appears to be some level of comity in terms of the expenses attributed to the children by the mother and the current amount being paid by the father.
In the circumstances, I consider that it is reasonable to bring to account the mother’s expenses.
The father’s position is that he is simply not able to make any greater financial provision than is currently the case.
That position will be further exacerbated with the payment of the entirety of the school fees for the children.
By reference to the financial statement of the father filed 15 April 2014, he lists his total income at $2,183 and his expenditure at $2,142.
The father was not challenged over the expenses as set out in Part N and I find that even the most cursory consideration would suggest that the personal expenditure of the father is modest and if anything, there is some concern that he will not be able to manage the total cost of the children’s education expenses, child support or the extra amount of $95 per week that he proposes.
The position may be further exacerbated depending upon how the father will ultimately fund the payment of the settlement sum to the mother as ordered.
Nonetheless, the father asks me to order that he will contribute the sum of $95 in addition to his current child support assessment for J and I propose to make that order.
The mother’s circumstances upon her return to the United Kingdom are demonstrably uncertain. She may well have the ability to generate significant personal income. There may be circumstances where she will pursue the biological father who resides in the United Kingdom.
In any event there will be a significant change in the circumstances of the parties that I do not consider it is appropriate to extend the order of child maintenance for J beyond the date that the children relocate to the United Kingdom.
The child support has been assessed by consideration of the needs of the children based upon the mother’s expenditure in her financial statement and the ability of the father to meet his expenses including child support as assessed.
I do not consider that the measure of the child support is dependent upon whether the father pays or makes a contribution towards the private school fees of the children.
The issue raised by the private school fees is whether in all the circumstances the father will be able to manage the totality of his outgoings and expenses.
Accordingly, I propose to order that the father will pay child maintenance for the child J in the sum of $95 per week.
I make orders as set out the beginning of these reasons.
I certify that the preceding three hundred and seventy nine (379) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 June 2014.
Associate:
Date: 11 June 2014.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Res Judicata
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