SW and RW
[2004] FMCAfam 437
•20 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SW & RW | [2004] FMCAfam 437 |
| FAMILY LAW – Children – where mother proposes relocation with children to Queensland – children oppose relocation – wishes – contact – Spouse maintenance – applicant does not establish threshold requirement for spouse maintenance – application to set aside a child support agreement on the basis of fraud – equitable fraud – a party asserting fraud carries the onus of establishing the facts that constitute the fraud and that the fraud induced their agreement – alternative child support departure application. |
Family Law Act 1975, ss.60, 62, 65, 68, 72, 75
Child Support (Assessment) Act 1989, ss.3, 4, 95, 114, 12, 136
B and B: Family Law Reform Act (1997) FLC 92-755
A v A: Relocation Approach (2000) FLC 93-035
R and R: Children's wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
U v U (2002) FLC 93-112
Bevan and Bevan (1995) FLC 92-600
Atwell and Atwell (1981) FLC 91-107
Mitchell and Mitchell (1995) FLC 92-60
Moge and Moge (1992) 43 RFL 3rd District 345
Best (1993) FLC 92-418
Green and Kwiatek (1982) FLC 91-259
| Applicant: | S W |
| Respondent: | R W |
| File No: | PAM2189 of 2004 |
| Delivered on: | 20 September 2004 |
| Delivered at: | Parramatta |
| Hearing dates: | 24 & 25 August 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gersbach |
| Solicitors for the Applicant: | Watson Stafford |
| Respondent: | In person |
ORDERS
Order (3) of the consent orders made 28 May 2003 in the Family Court of Australia is discharged.
The respondent father shall have contact with “the children” Danielle born in 1993, David born in 1995 and Joseph born in 1998 as follows:
(a)Pending completion of his home each Tuesday and Thursday from 6 pm until 8 pm and each Sunday from 10 am to 6 pm.
(b)Upon the father moving into his family home, order 2(a) is discharged. Thereafter, the father shall have contact with the children as follows:
(i)From 6.00pm Friday until the start of school Monday morning.
(ii)From after school Monday until the start of school Tuesday each alternate week following the weekends that the children are with the mother.
(iii)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(iv)In the years when the children are in their mother’s care for the first half of the Christmas holidays from 3 pm Christmas Day until 5pm Boxing Day.
(v)On the children’s birthdays as follows:
(a) If their birthdays fall on a school day, from after school the evening prior to the birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on their birthday until the start of school the next day.
(b) If the birthdays fall on a non-contact weekend for four hours from 9 am to 1 pm.
(vi)For Father’s Day in each year if it falls on a non-contact weekend from 9 am to 5 pm.
(vii)By telephone at reasonable times and with reasonable frequency.
(viii)At such other times as agreed between the parties.
Weekend contact is suspended during school holidays.
If contact occurs on the weekend that includes Mother’s Day, contact shall end at 9.00 am Mother’s Day.
In the years when the children are in their father’s care for the first half of the Christmas holidays contact is suspended from 3 pm Christmas Day until 5pm Boxing Day.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the father has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the father has exercised contact during the second half of the holidays.
If a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
If either party intends to take the children on holidays interstate they shall give the other party seven (7) days written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the children can be contacted.
Once the children start competition sport, both parties are responsible for ensuring that the children attend that sporting commitment whilst the children are in their respective care.
Nothing in these orders prevents both parties attending the children’s sporting or extra curricular events while the children are in the other parties care.
Both parties give each other not less than twenty-one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the children only.
The mother’s relocation application is refused.
The mother’s application to set aside the child support agreement is dismissed.
The mother’s application that the father pays spouse maintenance is dismissed.
The mother’s application to depart from the child support agreement is dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2189 of 2004
| S W |
Applicant
And
| R W |
Respondent
REASONS FOR JUDGMENT
Introduction
S W (“the mother”) and R W (“the father”) have three children. They are Danielle who is nearly 11 years, David who is nearly 9 years and Joseph who is 6 years old (not the children’s real names). The children live with their mother and have frequent contact with their father. The mother wants to move to the Gold Coast to live. Notwithstanding their mother’s desire the elder two children express a clear preference to continue living in Sydney. Principally this is because they want to continue to have frequent contact with their father. The father is strongly attached to the children and does not believe that he and the children can maintain sufficiently frequent contact if they live in different states. As a small business proprietor the father has established a customer network that has taken many years to establish. His capacity to earn an income would be seriously set back if he left Sydney for the Gold Coast. As a consequence, he opposes the mother’s relocation application.
The mother made it plain that she would not relocate unless she is able to take all children with her. In the event her relocation application failed she sought a spouse maintenance order, which the father says he cannot afford to pay. Irrespective of the outcome of her relocation application, the mother sought to set aside a child support agreement so that hereafter child support would be as determined by the application of the statutory child support formula.
Short history
The father was born in 1965. He was born in Turkey and migrated to Australia with his family.
The mother was born in 1967. She is also Turkish and also migrated to Australia with her family.
The parties married on 28 June 1991.
There are three children of the marriage, Danielle who was born in 1993, David who was born in 1995 and Joseph who was born in 1998.
The parties separated in February 2001. At separation the children remained living with the mother in the family home at Bossley Park. At separation the father moved into his sister’s home. He later moved in with his cousins because conditions were too crowded with him also living with his sister. Because the father did not have appropriate accommodation where he could take the children for overnight contact, he exercised overnight contact at the former matrimonial home. He visited the children most days, during which periods the mother usually went to her sisters or out.
On 17 April 2003 the parties executed a child support agreement, which provided that, the father would pay $200 per week total for the three children as well as the children’s private school fees. The parties agree that the children attend a Catholic school. The net effect of the agreement, when school fees are taken into account is that the father pays approximately $240 per week child support. The child support agreement was registered with the Child Support Agency on 17 April 2003[1].
[1] Exhibit E
The parties entered into parenting and property orders in the Family Court of Australia on 28 May 2003. Those orders have been registered in this court and thus the court has jurisdiction to vary the orders[2]. Essentially, the parenting orders provide that the children live with their mother and have contact with their father every weekend from 5pm Saturday until 5 pm Sunday, on special occasions, for four weeks during the school holidays and at other times that the parties agree upon. Because the father was in the process of building a new home, the orders provided that when he moved into his new home, the parties would renegotiate weekend contact.
[2] Annexure A father’s affidavit
Pursuant to the property orders the father transferred his interest in the family home at Bossley Park to the mother. When he did so she was required to re-finance the mortgage into her sole name. At the time the orders were made the mortgage balance was about $110,000. The father retained his appliance repair business and his 5% interest in the Smithfield property. This is a property that he and his father purchased from the Department of Housing for $160,000. The father owns his 5% interest as tenant in common and his father owns the remaining 95 %. When the s.79 orders were made there was virtually no equity in this property. I accept the father’s evidence that he agreed that the mother should have the home and its contents so that she and the children had secure accommodation. Although separated, if they lived close by to each other, the parties could have joint responsibility for and participation in the children’s lives, which outcome he was keenly motivated to achieve. The mother received substantially more by way of the adjustment on the division of the matrimonial assets than the father did. In essence she received nett assets worth about $277,000 and $16,000 superannuation while the father received nett assets worth about $53,000 and superannuation worth $7,300.
After the orders were made, the father had contact to the children virtually every day.
A decree nisi was ordered on 24 October 2003, which decree became absolute on 25 November 2003.
In about November 2003 the mother asked the father to afford her greater privacy and to no longer exercise contact at the former matrimonial home. As a consequence of which he exercises contact for two hours each Tuesday and Thursday, on Saturday evenings for about four hours and each Sunday from about 10 am until 7 pm. All contact is exercised away from the former matrimonial home. It appears that the November 2003 discussion was acrimonious and after it, the father stopped paying child support. He did not pay child support between November 2003 and February 2004. Subsequently the father has paid all child support arrears.
In January 2004 the mother took the children to the Gold Coast for a holiday. They stayed at the mother’s brother’s home at 20/3 Fortune Place, Parkwood. This is the home that the mother will live in with the children if her relocation application succeeds.
On 22 May 2004 the father’s fiancee migrated to Australia from Syria. They will marry after the home at Smithfield is completed. Only then will the father and his fiancee commence cohabitation.
The mother’s circumstances and proposals
The orders sought by the mother are as follows:
·The orders as to contact made 28 May 2004 be discharged.
·The father have contact with the children (a) pending his completion of the family home (i) each Sunday 10 am to 6 pm, (ii) each Tuesday 6 pm to 8 pm. (b) in the event the mother is permitted to relocate the residence of the children (i) during half of all school holidays (ii) at such other times as the father may be in Brisbane or the mother may be in Sydney with the children (iii) by telephone and if the mother and father have access to the internet, then by internet (b) if the mother is not permitted to relocate the residence of the children then (i) each alternate weekend (ii) during one half of all school holidays (iii) one night per week (each Tuesday) from 6 pm to 8 pm.
·The registered child support agreement be set aside.
·In the event the mother is not permitted to relocate then the father pay $200 per week spouse maintenance.
During the hearing, the mother proposed additional contact, saying that she would fly the children to Sydney once a month. During school holidays she plans to drive to Sydney and remain in Sydney with family while the children are with their father. Even using advance purchase fares and travelling at non-peak times, the monthly airfares are likely to be at least $1,000 for four people, probably more. As well as these costs, during the period that the mother would be in Sydney whist the children are having contact with their father, she will not be paid.
Presently, the children and mother reside at the Bossley Park property which has been their home for many years. Each child has their own bedroom and the home is suitable for their needs. The children all attend school nearby at a Catholic school. Danielle is in year 5, David is in year 3 and Jonathan is in kindergarten. The parties agree that all three children are progressing well at school, which their school reports confirm. All three children appear settled and happy at school. The mother takes the children to and from school each day. The children are all in good health. David plays soccer with the local Soccer Club. This year his under 9 team qualified for the grand final. The older children have good and settled friendships. For example David is described by his soccer coach as, “A respectful, well behaved child. He appears to be comfortable with his peers and enjoys their company” [3]
[3] Exhibit I
During cross-examination the mother acknowledged that in Sydney she has three sisters and their families who live nearby. She is close to her Sydney based relatives and the children have strong relationships with their Sydney maternal family. If she needs it, the mother has one of her sisters mind the children for her. Presently, the children attend after school care two afternoons a week for which the mother pays $20 per week.
During their marriage, the parties agreed that the mother would give up paid employment and she stopped paid work in 1997. After separation she obtained work at a local doctor’s surgery. She earned $210 nett for working as a receptionist 8.30 am – 5.30 pm two days per week. The mother relinquished this employment in about August 2003 partly because of the cost out of school care and because she could not be available for the children, for example when they were ill. The mother did not particularise her before and after school child care costs. Presently two afternoons a week for all three children costs $20 per week. Thus it is difficult to see that a short period in the mornings would significantly increase out of school child care costs. The mother agreed that her Sydney relatives also own convenience stores. She says they have reliable staff and she does not believe a position could be made available for her in Sydney.
Although the parties were separated, the father renovated the family home after separation and it is in good condition. The home provides the mother and children with good accommodation
The mother’s brother K T resides in the United States of America. K T gave evidence via telephone from London. He owns the Gold Coast property that the mother wants to live in. It is an attractive four bedroom home in a compound setting. The complex has a tennis court, gymnasium and swimming pool. The Gold Coast home has four bedrooms and offers appropriate and pleasant accommodation for the children. I am satisfied that he is willing for the mother and children to live in his Gold Coast property, rent free permanently. In February 2004 he started giving the mother $250 per month support, which he recently increased to approximately $1,000 per month. One of the mother’s sisters, L S also lives on the Gold Coast. L S operates a number of small businesses, including a cleaning business and convenient stores and has offered the mother a job running a convenience store. The working hours would coincide with school hours, between 9 am and 3 pm. On the basis that the mother worked those hours she would earn $500 per week gross. The mother is keen to take this position, it being located only about 10 minutes away from the home and compatible with the children’s school hours. As well as his house on the Gold Coast, K T owns a house at Fairfield which is leased and commercial premises at Caringbah. On the Gold Coast the children would attend a nearby primary school and have regular contact with their aunt and cousins, with whom they have a close relationship.
The mother believes that she will feel happier and safer living on the Gold Coast. The father agrees that the Gold Coast probably offers a more peaceful lifestyle, however, does not accept the mother’s contention that where she is living is unsafe. Although the mother has been concerned about a number of incidents in the Fairfield area, none of which involved her, the children or anybody associated with them, I am not satisfied that living in Fairfield the children will inevitably be exposed to an unsafe or inappropriate environment.
The mother told the court counsellor that she frequently feels depressed. Although her doctor had referred her to a counsellor, she had not attended nor is she taking antidepressant medication. She expressed concern to the court counsellor that the father’s fiancee may attempt to usurp her maternal role. Having decided that she will be happier living on the Gold Coast, it is probable that the mother will feel greater contentment there, at least for a short time. I accept the court counsellor’s opinion, “It may be that the mother feels depressed, but nothing emerged which suggested that she would not respond to further medical intervention or counselling.”
If she is able to live on the Gold Coast, the mother contemplates renting the Bossley Park property. During closing submissions the mother’s counsel submitted that the mother might sell her home. Although this is a possibility, it was not the tenor of the mother’s evidence. Her inquiries of local real estate agents suggest that she could rent the home for about $280 per week, which would cover her mortgage of $226 per week and statutory expenses of $16 per week. This would produce a profit of about $36 per week. However, the mother must pay agent’s fees and the property would need to be insured. While the property is unlikely to produce a positive return provided it was rented continually, it would substantially cover its expenses. Presently, the mother receives a Centrelink payment of $229 per week and family benefit of $129 per week. Should she take employment on the Gold Coast the mother would earn $500 per week during school term, which equates to $20,000 per annum and lose her Centrelink pension, possibly also part of her family allowance. Combined these give her an annual income of $18,616. There are different types of family benefit some are means tested while others are not. Irrespective of where the mother resides, the father will pay child support of at least $200 per week. When the costs of contact are factored in, at about $250 per week, even if the Bossley Park property is rented the mother’s financial circumstances are barely improved if she resides on the Gold Coast. If she is liable to pay taxation any financial advantage is further depleted.
If she remains in Sydney the mother could look for part time work either with family or in the general community. Since giving up her work as a receptionist she has not made further attempts to find work. I am not satisfied that her employment prospects are superior on the Gold Coast irrespective of whether she looks for casual, permanent or part time work. Sydney comprises a far larger employment market, both as to the size of the job market and people looking for work. The mother needed to do more to persuade me that she could not have family friendly work offered within her family or in the general Sydney workforce. When she looked for part time work the mother found it. On the available evidence it appears that whether she lives on the Gold Coast or in Sydney I am satisfied the mother has equivalent employment opportunities.
In the event that the mother and children remain in Sydney, she is keen that the father exercises overnight contact to the children. She is concerned that because contact is structured around the father’s shop opening hours, the children are out of routine and tired after staying up late during the school week and on Saturday nights.
The father’s circumstances and proposals
At the commencement of this hearing, the father proposed that the children spend an equivalent amount of time with him as they do with their mother, effectively alternating between their parents week about. He proposed that if the mother moved to the Gold Coast that the children live with him. The father openly acknowledged his high opinion of the mother as a parent and the children’s strong attachment to her. Provided the mother remained living in Sydney and the children have regular contact with him, he said that the children should live with the mother. He readily acknowledged that the children would be distressed at permanent separation from their mother and upon reflection agreed that a shared living arrangement whereby the children moved homes each week was less than optimal. When the mother indicated that she would not leave for the Gold Coast without the children the father abandoned his application for shared residence or that the children live with him. He proposes regular and substantial contact, asserting that gaps of two weeks between contact are too long.
The father lives with a cousin at Fairfield. His accommodation is temporary and in about two months time the home he and his parents are building at Smithfield will be completed. The father and his father purchased this property from the Department of Housing a few years ago. At that time the father’s parents rented the house from the Department of Housing. Upon its completion the father, both of his parents and his fiancee will move into the home. The father’s mother is 73 years old and his father is 80 years old.
In July 2003 the father travelled to Syria in order to meet Ms T, with whom he had been corresponding. In accordance with cultural traditions a marriage had been arranged between the father and Ms T. During his stay in Syria, the father proposed to Ms T and they plan to marry as soon as the Smithfield home is available. Because they do not live together, Ms T’s contact with the children usually occurs on the weekends and she rarely sees them during the week.
The father rents a shop at Croydon from which he operates an appliance repair service. The father opens the shop between 8.30 am and 9 am and 6 pm six days a week. He does not take holidays, because he cannot afford to and the only days that the shop closes are public holidays. He buys used refrigerators and small appliances from Retravision, which he repairs and sells from the shop. He also works as a refrigeration mechanic and repairs appliance in customer’s homes. He is the sole registered proprietor of the business. Until two weeks ago, he paid, “Les” as a contractor to work in the business. Les operated the business full time while the father was in Syria in 2003 and at other times worked either at the shop or attending home based customers. The father contends that Les’ withdrawal from the business will greatly and adversely affect the business’ earnings. Because the cost of new appliances has continually fallen the father says that his income is falling as slowly the business fails. He has worked in this field for eighteen years and his clientele is primarily by word of mouth. Because he is concerned about the financial viability of the business, the father has been looking for other work. He has been offered a position as a subcontractor by an Appliances company, for which he will earn $1500 per week. At the time of the hearing he had not yet decided whether he would close the shop and take up the job offer or persevere.
Because his business has demanded so much of his time, contact has been structured around the shop hours. In order to have meaningful contact with the children are with him until about 8 pm during the week and later on Saturday nights. The father agrees ending contact at 11.30 on Saturday night is too late for the children. This has always been his belief and he only keeps the children that late because the mother tends to stay out late Saturday nights and he returns the children when she arrives home. This problem is short lived and has only occurred since the mother decided that she wanted her privacy and did not want the father exercising contact to the children overnight at her home.
The father’s extended family reside in Sydney. During contact the children spend significant time with their paternal grandparents, paternal aunts and uncles and cousins. The children are well integrated in the father’s family and enjoy close relationships with all of his family. The father does not have any relatives on the Gold Coast. When he is able to, the father attends David and Danielle’s sports training sessions. These are usually on Tuesday evenings. Until about June 2004 his attendance usually coincided with the end of training and it was there that he collected the children for contact. Since June he has arrived earlier, at least before David’s soccer training and has tried to be more available to watch David’s Saturday games.
Relevant law – parenting orders
Contact and relocation orders are parenting orders. The applicable law is well settled. These proceedings are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
When a court is considering a residence or contact application that includes a proposed relocation the Full Court in A v A: Relocation Approach (2000) FLC 93-035 identified the approach which judicial officers should follow in the adjudication of these matters. The Full Court held[4]:
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
[4] at paragraph 108 from 87,551 to 87,553
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
i)A court will identify the relevant competing proposals;
ii)For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
iii)On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b)The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c)Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Section 68F(2) – determining the children’s best interests
A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. Recently the Full Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best wishes." R and R: Children’s wishes (supra).
Pursuant to s.62(G)(2) on 4 June 2004 I ordered that a family report be prepared for this hearing. Court counsellor, John Lemaire, a psychologist employed by the Family Court of Australia interviewed the parties and children on 28 July 2004. His report, dated 5 August 2004 became the court’s exhibit[5]. The court counsellor concluded, “This assessment indicates that it is in the children’s best interests to continue to have regular and substantial contact with their father. If he is unable to move to Queensland, then an order, which maintains continued frequent contact emerged as appropriate.”
[5] Exhibit B
During the course of his investigations, the court counsellor spoke with each of the three children and explored with each of them their wishes concerning their mother’s plan that they move to the Gold Coast. Danielle told the court counsellor, “I don’t want to go to Queensland because I am used to Sydney”. When asked if she could get used to the new area she said that she had consulted a cousin, who told her, “It was boring”. She indicated that she feels comfortable in Sydney and that Sydney is her home. She realised that her mother wants to go and said she told her that they could go to the Gold Coast for holidays. Further on the court counsellor reports, “Danielle said that she likes being with her father and she would miss him if she moved. She enjoys playing soccer with him and visiting relatives with him. She answered “Yes” when asked if her relatives were important to her. She reiterated her desire to remain in her present home and locality”. The court counsellor sought to clarify with Danielle whether either of her parents had attempted to influence her wishes concerning this dispute. The court counsellor reports, “Regarding the proposed move the child said that her mother simply asked if she wanted to go and said nothing more. She added that her father had not mentioned the move and (had not forced her) to say anything”.
Danielle’s discussions with the court counsellor accord with both parties’ understanding of her wishes. The mother confirmed that Danielle has told her that she does not want to move to the Gold Coast, which is similar to the child’s indication to her father. Danielle appears well settled in her local community and participates appropriately in school, family and extra curricular activities. The evidence reveals that she is a well-behaved child who is considerate of her parents and others. The totality of the evidence concerning Danielle indicates that she has age appropriate maturity and is capable of weighing up the pro’s and cons to her moving to the Gold Coast or remaining in Sydney. The child made no complaints about the Fairfield area and there is no evidence that she has been exposed to anti social behaviour. Danielle has holidayed in the home that she would move to if her mother’s application succeeds and thus, evaluates her parents’ competing proposals with the benefit of knowing what is available to her if she moved. Notwithstanding that she would move into pleasant accommodation and have regular contact with Queensland relatives, Danielle does not want to move. I am satisfied that Danielle’s wishes reflect her own thoughts and feelings and not those of other people. Her wishes are soundly based and given her age and maturity must carry significant weight.
The court counsellor reported on his meeting with David thus, “David was asked if his mother had talked to him about Queensland. He said that she had told him they are going to live there, “but me and my sister don’t want to because we are going to miss dad”. When he told his mother that he did not want to go she told him that he could stay with his dad. He rejected that option because, “I want to be with both of them, I want to stay with her”. The child added, “It will be good when dad gets his house” so that they can stay overnight with him. David does not regret his parents’ separation because he remembered that they fought when they were together. He is happy that his father is remarrying, and again said that he does not want to go to Queensland because, “I won’t be able to see my dad”. By all accounts David is as well integrated in school, sports and his extended family as Danielle. His discussions with the court counsellor reveal that he is a considerate child who is strongly attached to both parents. It is plain that he holds both in great affection and does not want to lose either of them. His regular interaction with both parents is fundamentally important to him. Like his sister, David is well behaved and demonstrates good citizenship standards. His discussions with the court counsellor suggest that he is maturer than one would ordinarily expect in a child for his age. Like his sister he has had the opportunity to visit the Gold Coast and has a good idea of what the move there would mean for him. I am satisfied that David’s wishes reflect his own thoughts and feelings and not those of other people. His wishes are soundly based and given his age and maturity must carry significant weight. David and Danielle’s wishes weigh in favour of the father’s position vis contact and relocation.
Although Joseph was nearly 6 years old when seen by the court counsellor, the counsellor was unable to glean his wishes concerning the proposed relocation. The counsellor reports, “Joseph did not easily respond and spoke only a few sentences about his parents. He said that his parents fight and “they are not friends”. If Joseph has any relevant wishes concerning relocation, he was not able to articulate them. He is young and does not have the life experience or personal maturity to understand and weigh up the nuances of the competing proposals. I am not satisfied that Joseph has any wishes that should be taken into account.
All three children have always lived with their mother. More than any other person she has been primarily responsible for their day to day care. During cohabitation the father worked long hours, which meant that the mother predominantly carried out the children’s care. This pattern continued after the parties’ separated. The mother impressed me as having invested time, energy and loving care into all three children, which is reflected in their strong attachment to her. The quality of the interaction observed by the court counsellor reinforces how comfortable and close the children are to their mother. The court counsellor reports, “The children played gently with their mother. The four engaged in quiet conversation while they participated in competition with a board game. They then moved to the sand tray while also engaging in a spelling game. Normal family relationships were observed. The children appeared contented and happy with their mother and to be attached to her”. I am comfortably satisfied that the children are strongly attached to their mother which attachment is reciprocated. The children have never been separated from her for more than short periods and their relationship with their mother is fundamental to their sense of well being and stability.
Each of the children enjoys a strong and loving relationship with their father. Notwithstanding his work commitments, he has been intimately involved in the children’s daily lives. They accept that his absences at work, prior to separation, were necessary and it is clear that when he was at home the father invested time and energy into his relationship with the children. This follows from the strength of the children’s attachment to him and their desire to continue his substantial involvement in their lives. It is to both parties’ credit that they made great efforts to ensure that after separation the children still had daily contact with their father. This must have been onerous for both of them, particularly as they had agreed that their marriage was over and daily contact meant that they maintained substantial involvement with each other. The quality of the children’s relationship with their father was also apparent from the observations made by the court counsellor. The court counsellor reported, “When the father entered, and the mother left, the children accepted their father without hesitation. They continued with their activities and readily included the father. They remained cooperative and their affect continued to be positive. The children's behaviour and interaction indicated a close relationship to their father. When the mother, paternal grandmother, joined the children it was apparent that she is a familiar figure to them. They enthusiastically accepted her and invited her to participate”. This evidence, as well as the parents’ description of the children’s relationship with their father is consistent with the court counsellor’s opinion of the quality of the relationship. I accept the court counsellor’s opinion, “…the children have a close relationship with their father ...it was clear that Danielle and David want to continue with the present level of contact. They spoke affectionately of their father and said they don’t want to go to Queensland. It was apparent that they are close to their parents and they enjoy and need a positive relationship with both parents”. Just as the mother does, he invests a great deal of energy, and affection and his available time with the children. Essentially there are four factors that are pivotal to the quality of the children’s relationship with their father. They are the children’s affection for him, the mother’s commitment to the relationships, the father’s commitment to the relationships and the frequency of contact. Substantially reducing the frequency of contact is likely to undermine all children’s relationships with their father. Rather than easy interaction, which comes from regular contact, large gaps in contact, particularly for younger children, make gaps more significant. The child and parent must devote more of their limited contact time re-establishing the easy familiarity that is maintained by regular contact. Potentially, contact that is limited to school holiday contact, telephone and perhaps only no more frequently than once a month, will put the parent/child relationship under stress, both short and long term. This is a significant matter, which weighs against the mother’s proposed relocation application.
As I have already found, the mother’s proposal involves changes to virtually every aspect of the children’s lives. All children will change home, schools, leave behind family to whom they are strongly attached, leave behind friends and critically easy contact with their father. Conscious that the changes she seeks to impose on the children are profound, the mother told the court counsellor, “It will be hard for them at the beginning, but I am hoping they will settle down”. Whilst the children may eventually settle down, they are likely to mourn the life and relationships they have left behind. The only discernible advantage to the mother’s application, when examined from the children’s point of view, is that she may be happier, an outcome that is likely to be emotionally beneficial to them. It is axiomatic that a parent’s capacity to meet their child’s emotional and psychological is maximised if they themselves are settled, secure and happy. I accept the court counsellor’s opinion that, “Danielle, David and Jonathan appear to be emotionally secure and to have responded well to the present arranges which have excluded extensive contact since the separation”. All three children are physically healthy and it is plain that they are emotionally secure, psychologically healthy and stable children. This indicates that although the mother wishes to move to the Gold Coast and at times feels sad in her current circumstances, these feelings do not interfere with her capacity to meet the children’s emotional and psychological needs to a very high level. It is highly likely that her capacity results from her innate parenting ability and the support she receives from family in Sydney. Far from being isolated in Sydney the mother is part of a cohesive family group who provide her, and probably each other, with considerable practical and emotional support. I am satisfied that that support will continue. Whether the mother lives in Sydney or the Gold Coast the practical assistance that she needs as a single parent is available. The father says he and his family can be relied upon to care for the children if the mother is at work and a child is sick and unable to attend school or she is expected to attend work on short notice. Whilst the father’s availability is limited by the demands of his employment, I accept his evidence that members of his family are able to assist.
As is apparent from my earlier findings, if the mother and children live on the Gold Coast, I am far from satisfied about her capacity to contribute significantly to the costs of contact. Her affidavit was silent as to the actual costs that are likely to be incurred. When she explained these costs it seemed that she did her best to minimise the actual costs that she would meet. I am not satisfied that these parties can afford the costs of return airfares between Sydney and the Gold Coast twelve times a year or anywhere near as frequently for the children. The distances are too great for weekend contact to occur other than with air travel used as the mode of transport. If regular air travel is afforded all children may well have to miss out on some of their reasonable financial needs being met and potentially their standard of living would be compromised. The funds needed for air travel is more money than these parties, individually or together, can reliably put aside or routinely do without. Although she would have the court accept otherwise and despite her commitment to contact, I am not satisfied that the mother could maintain contact between Sydney and the Gold Coast for the frequency proposed indefinitely. Almost certainly the frequency of contact would lessen and the gaps between contact lengthen. This would be distressing for all the children and the father in the short term and is potentially damaging to their relationship in the long time. I give this factor considerable weight. It influences in a material way my comfortable satisfaction that the Gold Coast proposal is inconsistent with the children’s best interests.
The mother’s case was presented partly on the basis that she and the father have a poor relationship and that the children would benefit from their parents having less to do with each other. The parties disagree about many things, primarily matters concerning their relationship and its collapse. As far as the children are concerned they are in general agreement. There is no evidence that the children have been caught in parental cross fire on matters relating to the children. The parties agree on the children’s participation in sports and the style of education they should have. They respect each other as parents and desire the children to have as good a relationship as possible with the other parent. They probably asked too much of themselves when they agreed that the father would have contact at the mother’s home, necessitating daily interaction after separation. I have no doubt that this contributed to the occasional altercations between them, which culminated in the mother calling the police in November 2003 to have the father removed. Since then, they still have frequent communication during contact changeover, but their arguments are less frequent and there have been no further incidents in which the police have been involved. When the father moves into his home contact changeover will become even easier and the need for the parents to be involved in contact changeover will lessen. Whether the mother lives on the Gold Coast or in Sydney the tensions between the parties is likely to continue to reduce. Even if it continues at its current level, the children are reasonably sanguine about their parents’ apparent dislike for each other and have adjusted to it.
Fortunately, there are no risk issues that require consideration.
As far as possible the court should make orders that minimise the prospect of further proceedings. Because I am satisfied that the mother cannot afford contact with the frequency that her application proposes, there is a real likelihood that there will be further proceedings concerning contact and its enforcement should she move to the Gold Coast. Similar issues do not arise if the mother remains living in Sydney. This factor weighs against the mother’s proposed relocation.
Decision on parenting matters
Since separation, the children have thrived with the active input of both parents. They enjoy a strongly positive relationship with both parents and with each other. These are happy, healthy, well adjusted children. I accept the court counsellor’s opinion, “A move to Queensland would create significant change and necessitate a substantial adjustment task for the children. However nothing emerged which would suggest that the children’s best interests would be served by them coping with that change or by having diminished contact with their father.” I have not lost sight of the mother’s right to live where she chooses. However, that right, “Must defer to the expressed paramount consideration, the welfare of the child”. U v U (2002) FLC 93-112 at par 89.
In essence, these children need more frequent and reliable contact with their father than the mother’s Gold Coast proposal will permit. Although she is genuinely motivated to give regular contact, these parties’ modest financial circumstances mean that the frequent contact that the children need is unlikely to occur. The elder children’s wishes carry significant weight. They have a reasonable idea of how their life will change if they move to the Gold Coast and notwithstanding any attractions they are opposed to the move. They are settled and happy children for whom change will bring sadness and loss. In this case the mother’s interests must give defer to the children’s best interests.
As the mother’s relocation application has failed, the court must consider the future contact arrangements. The father would like to have contact with the children as often as possible. The children desire the same result. Until the father’s home is completed he is unable to exercise contact overnight. Until he can have overnight contact, short periods of mid-week contact will continue. Presently the father has contact on Saturday and Sunday, with the Saturday contact starting late in the afternoon. Because it starts late it often finishes too late. The mother’s proposal that contact end sooner so that the children are returned before they fall asleep is reasonable. So too is her desire to share some of the children’s leisure time with them. Because the father works Saturdays the mother’s application that she have contact all day Saturday and that the father have contact on Sundays for the majority of the day makes good sense. By starting contact at 10 am on Sundays the father and children will enjoy a full day activity and at best miss out on only a few hours each week. This pattern to contact is consistent with the children’s ages and the reasonableness that both parties have leisure time with their children.
Once the father is in his own home, the limitations on overnight contact disappear. Both parties are keen that he has overnight contact. It appears that they each recognise that this gives the children a better opportunity to immerse themselves in their father’s life and maximise the opportunity to spend valuable time with him and their extended paternal family. Although it might make him late opening his shop on Monday morning, there is obvious benefit to the children if the father is able to take them to school on Monday morning. This gives the children the chance to show the father where they attend school and introduce him to their school friends. It gives him the opportunity to talk to their teachers and see for himself how the children are fairing educationally. Starting contact on Friday afternoons from school is problematic, as this appears to be a busier time in the father’s business than early Monday mornings. The mother’s proposal that contact starts later on the Friday afternoon also works better as the children need not be burdened with possessions and additional clothes at school on Friday. Having delivered the children to school on Monday the father will need to arrange to return the children’s clothing and possessions directly to the mother. The parties communicate sufficiently well on matters concerning the children and this can be done without acrimony. If the father must work on weekends, his parents and future wife will be able to attend to the children while he is away. The children have a good relationship with their paternal grandparents and the evidence suggests that them these three adults are able to meet the children’s needs.
Because the children are used to having contact with their father four times each week, reducing the frequency of contact to each alternate weekend would be distressing for them. Whilst many children manage alternate weekend contact well, these children would find a gap of two weeks between contact unacceptable. On the alternate week I will order contact overnight on one occasion from after school until the start of school the next morning. The father will need to ensure that he collects the children from school and returns them directly to school. Because contact is one night overnight, the children need not be loaded down with additional clothes and possessions. Whilst these arrangements change the frequency of contact overall the duration of contact remains about the same. These arrangements have the advantage of giving the father the opportunity to actively parent the children and exercise his parenting skills and responsibility in a meaningful way. They also have the advantage of giving the mother the chance to enjoy the children’s company and they hers, free from their school commitments.
I accept the mother’s evidence that the father has paid insufficient attention to the children’s need to complete homework. He demonstrated little understanding of their school work. Having longer periods of contact it will be his responsibility to ensure that the children complete their homework.
The orders will give both parties the opportunity to enjoy special occasions with the children and share school holidays. Both parties enjoy the children’s extra curricular activities and will be responsible for ensuring that the children are able to participate in their sports and other activities. Because the parties are able to communicate appropriately on matters concerning the children, they will both be able to attend activities when the children are in the other parent’s care. As a matter of courtesy both will need to ensure that the other parent is informed that they are planning to attend.
The parties have previously disagreed about school holidays, in particular the mother’s desire to the take the children to Queensland in the 2003/2004 Christmas school holidays. So that they avoid these difficulties in future, the parties will need to give each other no less than seven days notice of their intention to holiday interstate. Thus, if the other party strongly objects and believes they have a proper basis for doing so they will have time to make an urgent application to the court. The other parenting orders are intended to enable smooth contact changeover and facilitate the primary contact orders. These orders I am satisfied are in the children’s best interests.
Spouse maintenance
The mother brings an application under s.74 and s.72 for the payment of spouse maintenance. The father opposes her application challenging her need and alleging that he is not reasonably able to pay maintenance. This application is only pressed if the court refuses the mother’s relocation application.
In Bevan & Bevan (1995) FLC 92-600, the Full Court of the Family Court, identified the process and essential elements of an application for spouse maintenance. They said:
“An award of spouse maintenance requires:
1. A threshold finding under s.72.
2. Consideration of s.74 and s.75(2).
3. No fettering principle that pre-separation standard of living must automatically be awarded where the Respondent’s means permit.
4. Discretion exercised in accordance with provisions of s.74, with reasonableness in the circumstances as the guiding principle.”
It is important to understand the limitations contained in s.72 of the Family Law Act 1975:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The mother’s application is pressed primarily on the basis that by reason of having the children’s care she does not have the capacity to obtain appropriate gainful employment. In her financial statement she reveals that her average weekly expenses total $339 to which I add one-quarter of the personal expenditure outlined in her financial statement in part G. This means that the mother’s average weekly expenditure is about $409. The father did not challenge the mother’s expenses nor is her evidence inherently incredible. I cannot take into account the mother’s Centrelink benefits. As a consequence the mother has a shortfall of expenses over income by at least the $200 per week that she seeks as spouse maintenance.
The critical issue is whether the mother has the capacity for employment or whether, as she asserts, her care of the children and absence from the paid workforce, means that she is unable to provide for herself financially. The first question is whether these circumstances alone mean that the mother is unable to obtain appropriate gainful employment. Her counsel submitted that it does. In Atwell & Atwell (1981) FLC 91-107 Nygh J was faced with determining a spouse maintenance application where there was a paucity of evidence. His Honour held:
“The first question is whether she has a capacity to remuneratory employment. In her affidavit she states, "I turned 57 years of age on 14 January 1981. Despite my age I have been able to obtain part time work as a shop assistant at a shop where I work three days each week and earn approximately $2,225 per annum." There is no direct evidence of any other attempt to obtain employment or as to her qualifications or lack thereof for employment. There is evidence as to her age but no evidence as to her state of health or her physical capacity to undertake employment. Can it be deduced from her age, 57, that she has reduced capacity for gainful employment? In my opinion, there ought to have been additional evidence about lack of training for employment, reduced health or mobility or other factors.”
These concepts were considered more recently by the Full Court in Mitchell and Mitchell (1995) FLC 92-60. The Full Court said at par 81-997: “ In this regard, we refer to the detailed analysis of comparable problems in Canada by the Supreme Court of Canada in Moge & Moge (1992) 43 RFL 3rd District 345, and the discussion by this Full Court in Best (1993) FLC 92-418, especially at 80-295, and the reference in those cases to the feminisation of poverty and to numerous articles upon that subject both here and overseas at that time.” In Moge the Canadian Supreme Court said that judicial notice could be taken of relevant social science studies subject to other expert evidence. The Full Court referred to this in Mitchell (supra) and said: “We agree with these general propositions. Like Canada, Australia has a body of research indicating that mothers, who are the primary care givers of dependent children, inevitably drop out of the paid workforce and consequently suffer financial deprivation which is exacerbated by marriage breakdown. See the Australian Institute of Family Studies publications, McDonald editor (1986) Settling Up Property and Income Distribution on Divorce in Australia, Formdar, Harrison & Weston (1993) Settling Down, Pathways of Parents After Divorce. "In our view, there are significant advantages to the Court being able to take juridical notice of research concerning the economical consequences of marriage and its dissolution".
However the Full Court also said, "We also agree with the caution contained in Moge against judicial notice being perceived as a substitute for evidence in the particular case". Clearly the mother’s opportunity for employment is affected as a consequence of her care of the children. Managing as a single parent while the children are in primary and infants school, even if working part time, is onerous. However, the mother says that if she lives on the Gold Coast she will work 9.00 am until 3.00 pm five days a week without undermining her ability to care for the children. As I have already found, it is likely that the same scenario could be available for her in Sydney. I do not expect that the mother must put herself through the humiliating exercise of applying endlessly for work in the face of continuing rejection. However, the court can only go so far. The mother carried the onus of proving her case. Her affidavit is entirely silent on the attempts, if any, that she has made to obtain work after she stopped working in the surgery. Consequently, I infer that she has made none. She need have done little more than identify that she had perhaps telephoned her previous employers, made contact with a couple of employment agencies or looked at employment noticeboards. With such evidence she may have been able to persuade me that she had made sufficiently exhaustive attempts to obtain either full time or part time work and that she was presently unable to obtain it. The absence of evidence of this type creates real difficulty for her in the presentation of her case.
Because she has been in the paid workforce reasonably recently, I am not satisfied that I should conclude that she is unable by virtue of her care of the children and absence from the paid workforce to obtain appropriate gainful employment.
Thus, the mother has not established the threshold s.72 requirements that must be established for the court to consider further her application for spousal maintenance. Her application for spouse maintenance will accordingly be dismissed.
Setting aside the child support agreement
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in section 4. Each of the objects needs to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. When interpreting the Act, the section requires that “the Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)To permit parents to make private arrangements for the financial support of their children; and
(b)To limit interferences with the privacy of persons.”
Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part 7 include:
(a)That children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and
(b)That parents share equitably in the support of their children.”
Thus, the Act includes provisions that provide a scheme for the implementation of consent arrangements. Part 6, Division 3 contains the provisions that relate to applications to the Child Support Registrar for acceptance of a child support agreement executed in accordance with the terms of Divisions 1 and 2 of the Part. The Registrar must make a decision to accept or refuse to accept the agreement (section 92). Once accepted, the liability to pay child support arises where child support was not already payable pursuant to an administrative assessment. Provisions contained in the child support agreement for periodic payments have effect, for the purposes of Part 5, as if they were an order made by consent by a court under Division 4 of Part 7 (section 95(2)).
The mother’s child support is variously described as an application to discharge the agreement or to set it aside. During the proceedings it became clear that her application is to set it aside. Thus the mother’s application is not to vary the agreement but to set it aside pursuant to s.136 Child Support (Assessment) Act on the basis of fraud. Section 136 is in the following terms “ (1) A court having jurisdiction under this Act may set aside a child support agreement that has been registered in the court if the court is satisfied, on application by a party to the agreement, that the concurrence of the party was obtained by fraud or undue influence. ( 2) Subject to section 145 (Registrar may intervene in proceedings), the parties to a proceeding under subsection (1) are the parties to the agreement.” This section is analogous to s.86(3) of the Family Law Act. The concept of fraud was discussed by the Full Court in Green and Kwiatek (1982) FLC 91-259. The case concerned the interpretation of the then s.87(6), which was the precursor of s.87(8). Subsection (6) as it then was, provided that the court may revoke the approval of a maintenance agreement if the court was satisfied ''that the approval was obtained by fraud, that the concurrence of a party was obtained by fraud .'' I was not referred to any cases where the nature of s136 fraud is discussed. It seems to me that in order to establish fraud it is necessary to establish equitable fraud and that the concurrence of the other party was obtained by the fraud. Thus a party asserting fraud carries the onus of establishing the facts that constitute the fraud and that the fraud induced their agreement.
In her trial affidavit the mother gave evidence concerning her application to set aside the child support agreement. She said, “I rely upon the financial circumstances filed herewith. During the relationship I saw that the father brought home his business income each week. I saw that he received between $3,000 - $5,000 per week. I saw that the father kept this cash monies at the home and that he did not deposit the funds into a bank account”. She submits that the father’s disclosure on their application for consent orders filed in the Family Court on 22 May 2003 was fraudulent insofar as it related to his income. Both parties were legally represented when the agreement and orders were negotiated and entered. The application for approval of the orders was a joint application. In it the father estimates that his gross weekly income is $1,000. The child support agreement and property orders were negotiated and agreed at the same time.
The father’s sole source of income is derived from his Appliance Company. For the year ended 30 June 2003 its financial statements[6] shows that the total sales were $84,468.55 and cost of sales $30,343.88. Thus, the gross profit from trading is $54,124.67. Rounded off this is $1,040 per week. The notes to the financial statements reveal that the business made a total profit of $20,385.47, which is the income amount included in the father’s 2003 taxation return. In the notes to the financial statements it appears that in addition to the declared profit, the father made drawings of $34,466.91. This means that although his taxable income was $20,385.47 he received $50,300.82, approximately $967 per week. The drawings will eventually be repaid, probably via a loan account. Although legitimate business expenses, the father did not actually pay home office or depreciation expenses, which combined gave him allowable deductions of $12,297. This additional money is probably retained by the father and used for his personal expenses. Blending drawings, taxable income and claimed, but not paid business expenses, the father received about $65,000, or $1,200 per week in 2003.
[6] Exhibit G
There are gaps in the father’s accounts that he was unable to explain. For example, Les worked during the 2003 tax year apparently as a contractor. There are no identified expenses for contractors. Les’s involvement in the business was reasonably significant and the father says he paid Les cash and that Les was responsible for payment of his taxation and superannuation obligations. The complete absence of expenses attributable to wages or contractors is revealing and suggests that the father’s financial affairs are different to those disclosed in the business returns. Both in terms of his business income and expenses.
At about the same time as the father signed the application for consent orders, he applied to Royal Guardian Mortgage Pty Limited for a loan. He and his father jointly applied to borrow $373,000. The purpose of this loan was to re-finance the $160,000 loan secured against the Smithfield property and for the construction of a home on the land. In his loan application[7] the father discloses that his gross annual income is $168,000, which equates to approximately $3,000 per week. The father told the potential lender that the market value of his principal residence is $650,000. It appears that he was referring to the completed and unencumbered value of the Smithfield property. It is important not to overlook that this was a joint loan application. The assets and liabilities portion is a joint representation by the father and his father. Thus as far as the property is concerned the father has 5% and his father has 95%. I accept the father’s evidence that the mortgage broker gave him the figures that he needed in order to obtain loan approval. The father did not obtain a valuation of the improved value of the Smithfield property and I accept that the figure included is probably an exaggerated hope. The father asserts that tools are worth $72,000, a figure he says, and I accept, is a gross exaggeration. The father’s father is described as a pensioner, yet the amount received from his pension is not disclosed. Nowhere on the loan application is the father required to disclose business expenses. I am not persuaded that I should regard the father’s loan application as a true reflection of his income or assets. The loan particulars have been tailored in order to secure the loan. I attach little weight to the document.
[7] Exhibit F
Having secured the loan the father and his father knocked down the Department of Housing house at the Smithfield property and jointly contracted to build a home that will cost $247,000. In his financial statement the father has blended personal and business expenses. Under the heading “Personal Expenditure” his weekly personal expenses are $100 tax, $361 Royal Guardian, $34 credit cards and $200 child support. On a weekly basis he pays $100 food, $10 clothing and shoes, $100 children’s activities, $2 medical, dental and optical, $5 toiletries and $76 for the children’s school fees. Together these total $273. Thus his total personal expenses are $966. The father says that although he did not disclose it on his financial statement, his father and other family members contributes to his loan repayments and that he has been using a portion of the monies borrowed from Royal Guardian in order to meet personal and business expenses. The father did not call any of these people to corroborate his evidence, something that does not assist his case.
I am uneasy about the adequacy of the father’s financial disclosure. However there are factors that indicate that he does not have considerable undisclosed income or assets. For example he resides with relatives and lives in modest circumstances. Although he dearly desires to have the children stay with him overnight, he is unable to afford to rent adequate accommodation to do so. He works long hours and other than his trip to Syria, he been unable to afford to take holidays. The father was unable to afford legal representation for this hearing. He will be living with his parents and his father is the principal owner of his home. That portion of the loan than was borrowed to refinance the existing loan was borrowed interest only, indicating a limited capacity to repay principal and interest. He and his father borrowed the entire purchase price for the Smithfield property and the new home. Taken together, while I am satisfied that the husband has been able to intermingle business and personal expenses to an extent and that he has business income and expenses that he has failed to disclose, he is nonetheless a person of modest means.
A flaw in the mother’s application to set aside the child support agreement is her evidence that she was aware that the father earned more than he disclosed on the consent orders application. She says that she knew the income earned and because of that knowledge sought to demonstrate fraud. The mother needed to demonstrate that she relied in some way on his misinformation and that it contributed to her acquiescence to the child support agreement. She did not make this claim in her affidavit or her oral testimony. The effect of this is that I am satisfied that the mother gave no heed to the father’s disclosure in the application. His representation as to his income or assets did not influence her when she signed the agreement. She only seeks to set aside part of the bargain, and makes no challenge to the property orders. This suggests that the mother accepts that the father’s assets are not worth the larger sums contained in the loan application. For these reasons the mother has failed to establish the necessary elements to set aside the child support agreement.
The mother’s departure application
During closing addresses the mother’s counsel submitted that she also sought to rely on s.117(2)(a)(i) in order to depart from the agreement. In Gilmour and Gilmour (1995) FLC 92-591 the Full Court considered the principles applicable to a variation or discharge of a previous departure order made under the Child Support (Assessment) Act1989. The court was asked to consider, whether or not, by virtue of s.100 of the Child Support (Assessment) Act1989, s.66N(2) of the Family Law Act 1975 was imported into the Child Support (Assessment) Act 1989 and therefore required an applicant seeking to change a departure order to demonstrate that there had been a change in circumstances. The Full Court held, “Whatever might be the purpose or effect of s.100 of the Assessment Act, we do not consider that it can operate to apply the principles of provisions of the Family Law Act 1975 into a division of the Assessment Act in which those principles have not been given express legislative statement in circumstances where such principles are given express legislative statement in the immediately succeeding division”. The very existence of a threshold requirement in Division 5 of Part 7 (Section 129(3)) compared to its absence under Division 4 demonstrated an express legislative intention to impose a threshold requirement in Division 5, but not Division 4. In other words, the Full Court concluded that it was not a precondition to a successful application under the Child Support (Assessment) Act 1989 to establish that there had been a change in circumstances. In Liu & Chen [2003] FMCAfam 322 Chief Federal Magistrate Bryant (as she then was) concluded, “Conversely, it seems to me a change in circumstances alone would not necessarily therefore be sufficient to provide a ground on which an agreement may be varied or discharged”.
As Gilmour makes clear the approach to such an application is that set out in Gyselman and Gyselman (1992) FLC 92-279. The Full Court in Gyselman set out a three step process that courts must follow in determining an application for a departure order under s.117. The first step whether one or more of the grounds in s.117 are established. If so, the next step is whether it is just and equitable within the meaning of s.117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s.117(5) to make a particular order.
Later Full Court decisions have confirmed the approach in Gilmour. It is further discussed in Liesert v Nutsch (1996) FLC 92-665, Bryant (1996) FLC 92-690 and Wild v Ballard (1997) FLC 92-771. In the understatement of the century, in Bryant the Full Court said, “While s.117(2) might well have been more clearly drafted, nevertheless we are satisfied that the expression “The provisions of this Act relating to the administrative assessment of child support” in the subsection must include not only an administrative assessment made by the registrar of the Child Support Agency under Part 5 of the Assessment Act, but also the periodic payment provisions in a child support agreement which has been accepted by the registrar under Part 6 of the Assessment Act, and also any order of a court made under Part 7 for departure from an administrative assessment”. Further on, “It must, however, be recognised that once an order has been made departing from an administrative assessment, before there can be a variation of (or “departure” from) that existing order, it must be established to the court’s satisfaction, that since the making of the existing order circumstances have arisen as a result of which the financial capacity of either party is now significantly reduced s.117(2)(a), or the costs of maintaining the child have been affected s.117(2)(b) or the existing order now results in an unjust and inequitable determination of child support s.117(2)(c). There is nothing Gilmour to suggest to the contrary”. As their Honours explained if it were otherwise, “There would be nothing to stop a party who did not accept the terms of a departure order from immediately approaching the court to have the matter re-heard, or to stop a party who thought better of the agreement, which he or she had made, immediately seeking to vary the agreement”.
In Wild v Ballard the Full Court stated, after referring to Bryant’s case, “The requirements of s.117 as explained in Bryant obliged His Honour, when dealing with the husband’s application, for the reduction in his obligation to pay periodic child support, to determine firstly whether by reason of a change of circumstance, a ground for departure existed, and then required His Honour to determine whether it would be just and equitable and otherwise proper to make an order departing from the existing assessment”.
Special circumstances of the case – has the mother shown a ground for departure?
The focus of the mother’s case is her ability to provide financial support for the children because of her duty to maintain “any other child”. As I understand her submission she says that she is unable to support the children the children because she has their care. The mothers and children’s expenses are set out in her financial statement. The father did not challenge her evidence and I accept that her financial statement accurately sets out her and the children’s income and expenses. At the time the agreement was made the mother had part time work that she later gave up. In this instance she has the same difficulty that she has with her spouse maintenance application. The mother claims that notwithstanding the children’s care she is able to work on the Gold Coast. She has not demonstrated any impediment to doing so in Sydney. The same paucity of evidence concerning her attempts to gain appropriate employment in Sydney stands in the way of showing s.117(2)(a)(i) special circumstances.
Because the mother has not established a ground for departure I am not required to consider ss.117(4) or (5). However for abundant caution, if I were wrong in deciding against special circumstances I would not find on the facts before me that it is just and equitable to order a departure. When the father’s child support payments, periodic and non periodic are combined, he is paying about $270 each week. Using the formula this is the amount he would be assessed to pay if he were earning about $65,000. I am not satisfied that he earns more than this and would not order him to pay greater child support.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 20 September 2004
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