T and G
[2008] FCWAM 5
•21 MAY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT : FAMILY COURT ACT 1997
CHILD SUPPORT (ASSESSMENT) ACT 1989
LOCATION : PERTH
CITATION : T and G [2008] FCWAM 5
CORAM : MORONI M
HEARD : 10 - 11 MARCH 2008
DELIVERED : 21 MAY 2008
FILE NO/S : PTW 5051 of 2006
BETWEEN : T Applicant/Father
AND G
Respondent/Mother
Catchwords:
CHILDREN'S ISSUES - Time to be spent with children by a parent; proposed change of children's surname; various injunctions
Legislation:
Family Court Act1997, s 66C
Child Support (Assessment) Act1989, s 116(1)
Child Support (Registration & Collection) Act1988
Category: Not Reportable
Representation:
Counsel:
Applicant : Ms T Farmer
Respondent : Self-Represented Litigant
Solicitors:
Applicant : Julia Barber & Company
Respondent : Self-Represented Litigant
Case(s) referred to in judgment(s):
M and H [2008] FCWA 16
Introduction
1The proceedings for determination by the Court comprise a Form 1 application filed by the Applicant, [Mr T], on 7 September 2006 (as amended on
20 December 2006) and a Form 1A response filed by the Respondent, [Ms G], on
16 October 2006.
2 The proceedings concern the long-term welfare of the parties’ two children, namely, [C] born [in] June 2002 and [F] born [in] March 2004 (“the children”).
Orders sought
3 The relief sought by the Applicant was particularised by him in a “Minute of
Proposed Orders” filed on 21 February 2008. He seeks the following orders:-
“1. That, until further order, the children of the parties, [C] “[C]”) born [in] June 2002 and [F] (“[F]”) born [in] March 2004 (“the children”) live with the Respondent Mother.
2.That the parties retain equal shared parental responsibility for the children.
3. That the children spend time with the Applicant Father as follows:
School Term Holidays
April
Forone half of the April school holidays in 2009 and in each alternate year thereafter, commencing on the day after the last day of the school term and concluding half way through the holidays and in
2008 and in each alternate year thereafter, commencing on the day that is half way through the holiday period and concluding 2 days before the start of the following school term (therefore if school term commences on the Monday, contact concludes on the Saturday prior).
July and September-October school holidays
Forall of the July and September-October school holidays with contact to commence on the day following the conclusion of the school term and to conclude 2 days prior to the commencement of the following school term.
Long summer vacation
During the long summer vacation the children spend contact time with the
Applicant Father for a 4week period as follows:-
i) In 2009 and in each alternate year thereafter, such period to commence on the day following the last day of school term;
ii) In 2008 and in each alternate year thereafter, such period to commence 4 weeks and 2 days before the commencement of the start of the new year school term.
4.In addition to the contact referred to in paragraph 4 above, the Applicant Father spend additional contact time with the children as follows:
During school term:
i) For a 3 day period during each of the 4 school terms, with such period to commence on Friday at 4:00p.m. and concluding on Monday at 9.00a.m. if the children need to attend school or otherwise at 11.00a.m. unless the weekend is a long weekend and in that case concluding on Monday by 5.00p.m.
ii) For a 3 day period during the Father’s Day weekend, with such period to commence on Friday at 4.00p.m. and concluding on Monday at 9.00a.m. if the children need to attend school or otherwise at 11.00a.m. unless the weekend is a long weekend and in that case concluding on Monday by 5.00p.m.
iii) For a 3 day period during a weekend that includes each of the children’s birthdays (or the nearest weekend thereto) in each alternate year, commencing in 2009 for [C]’s birthday and in 2010 for [F]’s birthday, with such period to commence on Friday at
4.00p.m. and concluding on Monday at 9.00a.m. if the children need to attend school or otherwise at 11.00a.m. unless the weekend is a long weekend and in that case concluding on Monday by
5.00p.m.
iv) As such other times as agreed between the parties.
PROVIDED HOWEVER that the Applicant Father to take the children to school (if applicable) during the contact time ad pick the children up from school (if applicable).
AND PROVIDED FURTHER that contact times will not take place over the Mother’s Day weekend.
Deliver of children for contact time
5.For the purpose of the Applicant Father spending contact time with the children, where such contact time is to take place in [the North of the state], the Respondent Mother to deliver the children to the Perth airport one hour before the designated flight time at the commencement of the contact period and to collect the children at the conclusion of the contact period. Where contact
time is to take place in Perth, the Respondent Mother be responsible for delivering the children to the Applicant Father at the commencement of the contact time and the Applicant Father to return the children to the Respondent Mother at the conclusion of the contact time.
6.In the event that the Respondent Mother moves further from the Perth CBD than she is currently living, then the Respondent Mother to deliver and collect children for the purpose of contact.
Notification of travel arrangements
7.The Father Applicant to provide details to the Respondent Mother of dates for contact not less than 6 weeks prior to the commencement of each contact period and to provide copy itinerary and flight details not less than 21 days prior to the commencement of each contact period.
Costs incurred for contact time
8.The Applicant Father bear sole responsibility for the booking of and costs involved for contact in Perth during school term and the parties execute a Child Support Agreement, within 14 days from the date of these Orders, in the form prescribed by the Child Support Agency acknowledging the Applicant Father’s payments of the contact referred to in this Clause and authorising the Child Support Agency to credit all costs of such contact time against any amount of child support payable by the Applicant Father.
9.The Applicant Father bare sole responsibility for the booking of contact time to take place during school term holidays and the Long Summer Vacation.
10.The Applicant Father and the Respondent Mother share equally the costs involved for the school holiday contact to include the Easter, July, September and School holidays and to include the cost involved in the adult travelling with children until the children are old enough to travel unaccompanied PROVIDED HOWEVER that until such time as the Respondent Mother is working on a full time basis and notifies the Applicant Father of her ability to contribute equally to such costs of travel, the Applicant Father to bear sole responsibility for the costs involved for the Easter, July, September and Long Summer Vacation holiday periods including the costs of the adult travelling with children until the children are old enough to travel unaccompanied and the parties execute a Child Support Agreement, within 14 days from the date of these Orders, in the form prescribed by the Child Support Agency acknowledging the Applicant Father’s payments of the contact referred to in this Clause and authorising the Child Support Agency to credit all costs incurred by the Applicant Father for the purposes of contact
against the amount of child support payable by the Applicant
Father.
11.The Applicant Father purchased membership to Frequent Flyer programs for the children. It is agreed that points accumulated in relation to contact travel are for the benefit of the Applicant Father booking fares for the children and are not available for use by the Respondent Mother.
Telephone contact
12.That the Applicant Father have telephone contact with the children on the Respondent Mother’s mobile telephone (or landline telephone at the Respondent’s Mother’s option) when they are not in his care as follows:
i) Between 5:30 – 6:30 pm each Wednesday and Sunday. ii) Between 5:30 and 6:30 pm on the following days:
(a) Christmas Day;
(b) Father’s Day (if, for any reason, they are not spending contact time with the Applicant Father);
(c) Each of the children’s birthdays; and
(d) The Father’s birthday (29 April).
13.That the Respondent Mother use her best endeavours to have the children available at these times but that if the children are unavailable to take the Applicant’s Father’s call, the Respondent Mother telephone the Applicant Father on his mobile telephone within 24 hours at her cost, to enable the children to have telephone contact with the Applicant Father.
14.That the Respondent Mother have telephone contact with the children on the Applicant Father’s mobile telephone (or landline telephone at the Applicant Father’s option) when they are not in her care as follows:
i) Between 5:30 – 6:30 pm each Wednesday and Sunday. ii) Between 5:30 and 6:30 pm on the following days:
(a) Christmas Day;
(b) Mother’s Day (if, for any reason, they are not in the Mother’s care);
(c) Each of the children’s birthdays;
(d The Mother’s birthday (30 August).
15.That the Applicant Father use his best endeavours to have the children available at these times but that if the children are unavailable the Applicant Father telephone the Respondent Mother on her mobile telephone within 24 hours at his cost, to enable the children to have telephone contact with the Respondent Mother.
16.That the Respondent Mother provide to the Applicant Father of the contact details for the school ( including names of teachers) and childcare centre attended by the children, within 14 days from the making of these Orders.
17.That the Respondent Mother ensure that the Applicant Father is listed as the second emergency contact after the Respondent Mother at the school and childcare centre attended by the children within 14 days from the making of these Orders.
18.That the Respondent Mother authorise the school and childcare centre attended by the children, within 14 days from the making of these Orders, to provide copies of all school reports or correspondence from the school or childcare regarding the children to the Applicant Father including newsletters and merit or other achievement awards on an ongoing basis.
19.That the Respondent Mother use her best endeavours to prevent the children from calling [Mr G] “Dad”.
20.The parties keep each other informed of their current residential address and telephone number and advise of any change thereto within 24 hours of such change occurring.
21.In the event of the children sustaining any major illness or injury whilst in the other’s care such party inform the other of such illness or injury as soon as reasonably practicable by telephone.
22. If either party intends to take the children out of the State of
Western Australia for a holiday, that party provide the other with
14 days notice of their intention to travel and provide details of such travel plans including date of intended departure and date of intended return.
23.The parties each be and are hereby restrained by injunction from removing the children from the Commonwealth of Australia without notifying the other parent of their intention to travel overseas for the purposes of a holiday with the children and upon giving the other parent no less than 60 days notice of their intention to travel. In the event that the Applicant Father is the person wishing to take the children overseas then, upon the Applicant Father giving the Respondent Mother notice of his
intention to do so, the Respondent Mother immediately send the children’s passports to the Applicant Father to enable him to make appropriate booking arrangements. Upon either parent making travel arrangements to take the children overseas, that parent give the other parent no less than 45 days prior to their intention to travel full details of the travel including flight numbers, destination, dates of intended travel and details of where the children will be staying and provision of emergency contact numbers if applicable.
24.The Respondent Mother do, within 14 days of this Order, provide the Applicant Father with a photocopy of the children’s passports.”
4 The relief sought by the Respondent was particularised by her in a “Minute of
Final Orders” filed 13 February 2008. She seeks the following orders:-
“1. That, until further order, the children of the parties, [C] (“[C]”) born [in] June 2002 and [F] (“[F]”) born [in]t March 2004 reside with the Mother.
2.That the parties share joint parental responsibility for the Children’s short term and long term care, welfare and development.
3.That the Applicant Father bear full responsibility for any items of clothing, shoes and toiletries, etc that the children are delivered with for all contact periods, and that these items be returned in the same state and condition and if any item is stained, torn, damaged or simply not returned in any fashion, then those item/s be replaced by the Applicant Father at his expense. Additionally any medicine’s that the children are delivered with for all contact periods, that these items be returned and should any medicine run out then those medicine/s be replaced by the Father at his expense.
4. That the children spend time with the Applicant Father as follows:-
School Term Holidays
April and September School Holidays
A.Two weeks of each alternating April school holidays with the following conditions:-
i. The 2008 year, the Applicant Father to have contact for the 2 weeks of the April school holidays, with contact commencing on the day after the last day of School term (therefore if school term concludes on the Friday, contact begins on the Saturday) and with the contact concluding on the Saturday prior to the first day of the next School term.
ii. The 2009 year, the Respondent Mother to have contact for the 2 weeks of the April school holidays.
iii. That points i. and ii. above, alternates year after year.
B.Two weeks of each alternating September school holidays with the following conditions:-
i. The 2008 year, the Respondent Mother to have contact for the 2 weeks of the September school holidays.
ii. The 2009 year, the Applicant Father to have contact for the 2 weeks of the September school holidays, with contact commencing on the day after the last day of School term (therefore if school term concludes on the Friday, contact begins on the Saturday) and with the contact concluding on the Saturday prior to the first day of the next School term.
iii. That points i. and ii. above, alternates year after year.
July School Holidays
The Applicant Father to have contact for the 2 weeks of the July school holidays, with contact commencing on the day after the last day of School term (therefore if school term concludes on the Friday, contact begins on the Saturday) and with the contact concluding on the Saturday prior to the first day of the next School term.
Christmas / End of Year School Holidays
During the end of year Christmas/summer school holidays with the following conditions:-
i. The 2008/09 year, the Applicant Father to have contact for a 3 week period, with an extra 2 days provided for travel (being a total of 23 days) with the contact concluding 2 days before the start of the following years school term (therefore if school term commences on the Monday, contact concludes on the Saturday prior).
ii. The 2009/10 year, the Applicant Father to have contact for a 3 week period with the contact commencing 2 days after the conclusion of the school term (therefore if school term concludes on the Friday, contact commences on the Sunday).
iii. That points i. and ii. above, alternates year after year.
5.In addition to the contact referred to in paragraph 4 above, the Applicant Father spend additional contact time with the children as follows:-
During School Term
A.In each year when the Applicant Father has contact with the children during the April school holidays, as follows:-
i. For one weekend during school terms 1 and 2, with such period to commence on a Friday at 5:00pm and conclude the following Monday at 8:00am.
ii. For two weekends during school term 3, with the first weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am on the 4th weekend after the commencement of the school term and with the second weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am on the 8th weekend after the commencement of the school term.
iii. For one weekend during school term 4, with the weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am on the 4th weekend after the commencement of the school term.
B.In each year when the Applicant Father has contact with the children during the September school holidays, as follows:-
i. For two weekends during school term 1, with the first weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am on the 4th weekend after the commencement of the school term and with the second weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am on the 8th weekend after the commencement of the school term.
ii. For one weekend during school term 2, with such period to commence on a Friday at 5:00pm and conclude the following Monday at 8:00am on the 4th weekend after the commencement of the school term.
iii. For one weekend during school terms 3 and 4, with the weekend period to commence on Friday at 5:00pm and conclude on Monday at 8:00am.
PROVIDED HOWEVER that contact times will not take place over the Mother’s Day weekend or on the Mother’s birthday, should that fall on a weekend.
Delivery of children for contact time
6.For the purpose of the Applicant father spending contact time with the children for the School Holiday periods, the Respondent Mother to deliver the children to the Perth airport one hour before the designated flight time at the commencement of such contact periods, or as otherwise agreed.
That the Applicant Father return the children to the Respondent Mother to her residence at the conclusion of such contact periods, or as otherwise agreed.
7.Where contact time is to take place in Perth, the Respondent Mother be responsible for delivering the children to the Applicant Father at the commencement of such contact periods, subject to the delivery address being within 75 kilometres of the Respondent Mothers residence, or as otherwise agreed.
That the Applicant Father return the children to the Respondent Mother to her residence at the conclusion of such contact periods, or as otherwise agreed.
Notification of travel arrangements
8.For the purpose of the Applicant Father spending contact time with the children for the School Holiday periods, the Applicant Father to provide a copy of itinery (sic) and any other flight details of the travel to the Respondent Mother not less than 28 days prior to the commencement of each contact period.
9.For the purpose of the Applicant Father spending contact time with the children during each school term, the Applicant Father to provide dates of the intended weekend contact to the Respondent Mother not less than 28 days prior to the commencement of each contact period.
Costs incurred for contact time
10.That the Applicant Father pay for all the expenses involved in receiving and returning the children by way of any domestic air flight or motor vehicle travel as required for the contact periods above.
11.That the Applicant Father ear sole responsibility for the bookings of contact times to take place during school term holidays and the Christmas summer holidays and for mid term weekend contact.
12.The Applicant Father purchased membership to Frequent Flyer programs for the children. It is agreed that points accumulated in relation to contact travel are for the benefit of the Applicant Father booking fares for the children and are not available for use by the Respondent Mother, unless otherwise agreed.
Telephone Contact
13.That the Applicant Father have reasonable telephone contact with the children to the Respondent Mother’s mobile telephone or landline telephone, when they are not in his care, defined to include:-
a. Wednesday and Sunday each week between 5:30pm and
6:30pm
b. Each of the Children’s birthdays between 5:30pm and
6:30pm
c. Christmas Day between 5:30pm and 6:30pm d. Fathers Day between 5:30pm and 6:30pm
e. The Fathers birthday, 29th April between 5:30pm and
6:30pm
14.That the Respondent Mother use her best endeavours to have the children available at these times, but if the children are unavailable the Respondent Mother contact the Applicant Father within 24 hours to enable the Applicant Father to have telephone contact with the children.
15.That the Respondent Mother have reasonable telephone contact with the children to the Applicant Father’s mobile telephone or landline telephone, when they are not in her care, defined to include:-
a. Wednesday and Sunday each week between 5:50pm and
6:30pm
b. Each of the Children’s birthdays between 5:30pm and
6:30pm
c. Christmas Day between 5:30pm and 6:30pm
16.That the Applicant Father use his best endeavours to have the children available at these times, but if the children are unavailable the Applicant Father contact the Respondent Mother within 24 hours to enable the Respondent Mother to have telephone contact with the children.
17.The parties keep each other informed of their current residential address and telephone number and advise of any change thereto within 24 hours of such change occurring.
18.In the event of either child sustaining a major illness or injury whilst in the other’s care, such party inform the other of such illness or injury as soon as reasonably practicable by telephone.
Overseas and Interstate Travel
19.That if either party intends on domestic or international travel with the children outside of the state of Western Australia, that party give the other party notice in writing of not less than 60 days prior to the intended dates of travel and provide in writing to the other party full details of the intended travel defined to include:-
a. dates of intended travel, including departure and return to
Perth;
b. name of city’s and town’s intended on visiting.
PROVIDED HOWEVER that the party intending on travelling is not to travel to any country listed on the Australian Government registry as a dangerous country and should not be travelled to, or any other country which would possibly put the lives and welfare of the children at risk by travelling there.
20.That the party intending on travelling with the children provide full booked details of the travel, including copy of itinery’s (sic), details of travel insurance (if obtained), direct contact details and accommodation addresses and contact details whilst interstate or abroad, to the other party not less than 28 days prior to the intended dates of travel.
21.That the Respondent Mother hold in her possession the Passports of both children, and upon the Applicant Father providing the booked details as per paragraph 20. above to the Respondent Mother, the Respondent Mother send the children’s Passports via registered post to the Applicant Father within 7 days.
22.Upon returning from travel with the children, the Applicant Father to send the children’s Passports via registered post to the Respondent Mother within 7 days of the return date.
23.The parties each be and are hereby restrained by injunction from removing the children from the commonwealth of Australia without giving written notice to the other party as per paragraph 18 above.
CHILD SUPPORT ORDERS
24.That on the basis that the Applicant Father will continue to reside [in the North of the state] and thus will necessitate the expense of airfares for the children for contact visits until they reach mature age, that the following child support agreement shall apply:-
i. That the Applicant Father pay to the Respondent Mother a sum of $18,045.58 per annum $($1,503.80 per month) until the eldest child turns 18 years of age or is in full time employment (whichever is the former).
ii. That once the eldest child turns 18 years of age or is in full time employment, the Applicant Father pay to the Respondent Mother a sum of $10,363.72 per annum ($863.64 per month) until the youngest child turns
18 years of age or is in full time employment (whichever is the former).
25.That should the Applicant Father relocate from [the North of W.A.] and the necessity of airfares for the children for contact visits no longer is a valid expense of contact, then the following child support agreement shall apply:-
i. That the Applicant Father pay to the Respondent Mother a sum of $23,045.58 per annum ($1,902.47 per month) until the eldest child turns 18 years of age or is in full time employment (whichever is the former).
ii. That once the eldest child turns 18 years of age or is in full time employment, the Applicant Father pay to the Respondent Mother a sum of $15,363.72 per annum ($1,280.32 per month) until the youngest child turns
18 years of age or is in full time employment (whichever is the former).
Injunctions and Other Matters
26.That the surnames of the children be legally changed from the current names of [C T] and [F T] to the hyphenated surname of [“G-T]”, hence the children’s names to be [C G-T] and [F G-T]..
27.That each of the parties be restrained by injunction and an injunction is hereby granted restraining them from sending text messages to each other, or causing them to be sent, unless in the event of an emergency involving the children or either of them.
28.That the Applicant Father be restrained by injunction and an injunction is hereby granted restraining the Applicant Father from excessive alcohol consumption and the use of drugs, such as marijuana, in the presence of the children and that the Applicant Father attend regular and ongoing counselling sessions to overcome the abusive use of alcohol and drugs, and report back to the Court on an ongoing basis.
29.That the Applicant Father be restrained by injunction and an injunction is hereby granted restraining the Applicant Father from
behaving in an unacceptable and/or domestically violent manner in the presence of the children and that the Applicant Father attend regular and ongoing domestic violence counselling sessions through Relationships Australia or a government recognised counselling provider to overcome and manage the unacceptable behaviour and domestic violence, and report back to the Court on an ongoing basis.
30.That the partners of the parties be restrained by injunction and an injunction is hereby granted restraining the partners of the parties from physically disciplining the children.
The Orders made herein shall so far as it is practicable to do so finally determine the parenting responsibilities of the parties pursuant to Section 205ZJ of the Family Court Act.”
Brief background
5The Applicant is a self-employed [tradesman], now aged 35 years, who is permanently resident in [in the North of the state]. The Applicant is living with his current partner, namely, [Ms H] who is expecting their first child later this year.
6 The Respondent is engaged as a full-time parent and she is now aged 28 years.
She resides in [a suburb], to the south of Perth. The Respondent is living with her husband, [Mr G], and the children. She is expecting the first child of her marriage later this year.
7The parties were never married to each other but commenced their relationship [in the North of the state] in November of 1998. The relationship produced the children named above. Neither party brought a child into the relationship.
8The parties lived together in [the North of the state] throughout the course of the relationship up until the time they separated on or about 18 June 2005. It is common ground that the children have lived primarily with the Respondent since the date of separation and that the Applicant has regularly spent time with them. There is an issue between the parties as to whether the Applicant spent as much time with the children, shortly following the separation, as he might have spent. However, this will not be a significant issue in the final determination.
9On 19 September 2005 the Magistrates Court of Western Australia [in the North of the state] made the following orders by consent:-
“NOTE: APPLICANT IS [Ms B] & RESPONDENT IS [MR T] IN THESE ORDERS
With the intention that the following orders will, as far as practicable, finally determine the financial relationship between the parties and avoid further proceedings between them, within the meaning and intent of Section 81 of the Family Law Act 1975, the following
orders are sought in relation to child issued (sic) and as by way of final property settlement.
PARENTING ISSUES
1. That the children of the parties, [C] born [in] June 2002 and [F]
born [in]t March 2004 (“the children”) reside with the Applicant.
2. That the Applicant have sole parental responsibility for the
Children’s day to day care, welfare and development.
3.That the parties share joint responsibility for the Children’s long term care, welfare and development.
4.That the Respondent have reasonable contact with the said children defined to include:-
A. During school term:
(i) Each alternate weekend from 8.00am Saturday to 7.00pm Sunday or when the weekend during which contact is being exercised is a long weekend, the (sic) until 7.00pm Monday.
(ii) From the end of school each Monday until 7.00pm. B. During school holidays:-
(i) One half of each of the school holidays;
(ii) In the December school holidays and in the year commencing 2005 from 3.00 pm on the 25th December until 7.00pm on the 26th December.
(iii) Such further or other contact as may be agreed between the parties from time to time.
5.Until further order of the Court the Applicant shall be responsible for delivering the Children at the commencement of each of the above contact periods and the Respondent shall be responsible for returning the Children to the Applicant at the end of each of the contact periods.
FINANCIAL ISSUES:
6.That the Applicant pay to the Respondent the amount of FIFTY FIVE THOUSAND DOLLARS ($55,000.00) within twenty one (21) days of the date of these orders subject to the Respondent complying with paragraphs 7 and 9 hereof.
7.That the Respondent transfer to the Applicant free of encumbrances the whole of his right title and interest in the property situated at [the address in the North of the state] WA, and being more particularly described as Lot 111 on Plan 11111 in Certificate of Title Volume 1111 Folio 111.
8.That the Applicant transfer to the Respondent all her right title and interest in the Business known as [ABC].
9.That the Respondent refinance with the Commonwealth Bank all loans taken out by the parties in respect to the business described in paragraph 8 and the motor vehicle described in paragraph 10 hereof so that any Mortgage held by that Bank to secure those loans over the property described in paragraph 7 hereof is discharged simultaneous to the payment of the amount stipulated in paragraph 6 hereof.
10.That the Applicant transfer to the Respondent all her right title and interest in the [motor vehicle] registration xxxx and the [truck
]registration number xxxxx.
11.That the Respondent Transfer to the Applicant all his right, title and interest in the household contents, save for the [bed] and [dresser] which the Respondent will retain.
12.That the Respondent shall have the right of access to and the right to store his work equipment in the shed on the property at [the home address in the North of the state of] WA upon the following terms and conditions:-
A. The right of access shall be limited to a period of twelve
(12) months from the date of these Orders.
B.Wherever possible the right of access shall be exercised by the Respondent giving the Applicant one (1) hours verbal notice.
C. In the event that the Applicant sells or leases the property during the twelve (12) month period aforementioned then the right of access shall terminate upon the settlement of the sale or the date upon which the tenant occupies the property and the Respondent will remove all equipment stored in the shed at least three (3) days prior to such event.
13.That all bank accounts are deemed to be in the possession and ownership of the person who (sic) name appears on the bank’s records thereof.
14.That superannuation entitlements are deemed to be in the possession and ownership of the person who is named as the
worker whose age or working future provides the condition for payment out of such entitlement.
15.The Orders made herein shall so far as it is practicable to do so finally determine the financial relationship between the parties pursuant to Section 205ZJ of the Family Court Act 1997.”
10 The Respondent relocated south with the children within a short time of the above consent orders being made. The Applicant says that he consented with great reluctance to her relocation with the children, such relocation obviously being inconsistent with the terms of the consent orders having been made for him to spend time with the children each alternate weekend and at other times. The Applicant says further that his consent was limited to a trial period of only six months. The Applicant contends that he was duped into agreeing to a fairly one-sided financial settlement in favour of the Respondent and that it was always the Respondent’s intention to leave [in the North of the state] with the proceeds of sale of the home formerly occupied by the parties just as soon as she could arrange it.
11 Since proceedings were commenced in Perth in 2006, the parties have struggled to reach their own agreement regarding appropriate parenting orders for their children and in the result a defended hearing has been necessary so as to break the deadlock between them.
The issues to be decided by the Court
12 Whilst a multiplicity of factual issues, proposals and counter-proposals were raised both prior to the trial and during the course thereof, the principal questions to be decided by the Court may be summarised, in no particular order, as follows:-
(a) how much time in each year should the children spend with the
Applicant;
(b) how should such time be structured;
(c) what mechanical arrangements need to be put in place to ensure that the orders are able to be implemented without undue difficulty;
(d) how the significant financial burden of paying for the cost of transport necessary to implement the Court’s orders should be shared by the parties;
(e) whether the Respondent should be permitted to change the children’s surnames;
(f) whether any injunctions should be put in place to govern the ways in which the children refer to the Applicant on the one hand and the Respondent’s husband on the other.
The evidence
13 Both parties filed substantial affidavits of evidence-in-chief. The Respondent filed two affidavits, the first being filed on 13 February 2008 and the second (an affidavit in reply) being filed on 28 February 2008. The Respondent did not call her husband nor any other person to give evidence. For his part, the Applicant filed his affidavit of evidence-in-chief on 21 February 2008 and the same day filed the affidavit of evidence-in-chief of his partner, [Ms H]. Both parties have filed Form 13 financial statements.
14 Having considered the contents of the affidavits of evidence-in-chief and having witnessed both parties in the witness box in the course of the trial, the first and most obvious conclusion to record is that each of the parties holds the other in particularly low regard. It was apparent that neither party could find much, if anything, of a positive nature to say about the other. The high level of mutual antipathy in this case is such as to lead the Court to look very carefully at the evidence each party has adduced. In the Court’s experience, where parties harbour a simmering antagonism towards each other, it is all too easy for such feelings to impact upon recollections of individual events. It is often the case that such negative feelings held by a party against a former partner will affect consciously and subconsciously the way in which that party will recall a particular event or series of events.
15 Without wanting to oversimplify the cases of the parties, it seems to the Court firstly that the Applicant holds the Respondent in low regard because he is convinced that she:-
(a) tricked him into consenting to the parenting orders and financial orders made in [the North of the state] on 19 September 2005 when all of the time she well knew that she would sell the former family home and move with the children well away from [the North of the state];
(b) tricked him further into consenting to her moving south for what he believed would be a trial period of some six months in circumstances where there was never any intention to return to [the North of the state];
(c) has placed and will continue to place obstacles in his way so as to minimise his time spent with the children out of feelings of malevolence towards him; and
(d) is working to an agenda to replace him in the lives of the children with her husband.
16 Secondly, it seems to the Court that the Respondent holds the Applicant in low regard because she is convinced that he:-
(a) is a violent, abusive person of low character who subjected her to a sustained course of psychological and physical abuse during the course of their relationship, most of which abuse not being witnessed by third parties and therefore being difficult to prove;
(b) is a person who has and continues to abuse alcohol and cannabis;
and
(c) is a person who has deliberately misrepresented his actual earnings and his earning capacity to her, to the Child Support Registrar, and to the Court in order to minimise his financial responsibilities towards her and the children.
17 The issues referred to immediately above are all extremely serious. Both parties were keen to convince the Court that what each was saying about the other was all entirely true. For his part, the Applicant subpoenaed some documents from a settlement agency in [the North of the state] which documents would tend to support his contention that the Respondent was not entirely frank with him regarding her intentions and future plans following the breakdown of the relationship. For her part, the Respondent never wavered from her stance that the Applicant treated her shamefully during the course of the relationship and she did not shift ground at all on this important subject at any point during the course of the trial.
18 So how should the Court approach these substantial factual disputes between the parties? It seems to the Court that in all forms of litigation the focus of the Court must be upon the actual issues to be decided and that it is not incumbent upon it to make findings of fact on each and every contested fact alleged by a party simply because that is what a party requests. All of the areas of factual dispute need to be considered in the context of the ambit of the litigation. A neutral observer who chanced to sit in the back of the Court to witness the cross-examination of the parties and of the Applicant’s partner would probably be misled into thinking that the breadth of dispute between the parties was far greater than it actually is. This was never a case about where the children should live primarily. The parties agree that there should be an order for equal shared parental responsibility. The Court certainly sees no reason not to make the order for equal shared parental responsibility proposed by both parties. Furthermore, the parties agree that the children should live primarily with the Respondent, and of course with her husband, and with the child soon to be born to the Respondent. The parties also agree that there should be orders that the children spend time regularly with the Applicant, although having said that, the Respondent’s position was probably more a pragmatic realisation of the likely decision of the Court rather than a positive persuasion that the Applicant would be a good influence upon the children. More on this point will be said below.
19 By any reasonable standard, the proposals for time spent with the children by the Applicant as set out in the Respondent’s minute filed 13 February 2008 could not be said to be restrictive. Her proposals do not extend as far as the Applicant regards as appropriate, but those proposals could not be said to be patently inadequate. In essence, the Respondent is seeking to “quarantine” some of the shorter school holiday periods so that she can plan to spend the whole of certain school holiday periods with the children and perhaps take holidays with them. There is also a dispute between the parties about how much mid-term time the children should spend with the Applicant, but again this is really a dispute at the margin.
20 So it seems to the Court that there is really no need for it to delve into each and every area of factual dispute raised by the parties. Whilst acknowledging that family
violence is always a matter taken extremely seriously by the Court, it seems to the Court to be unnecessary in this case for it to make any detailed findings on that subject. This relationship has long since broken down and the parties live a very long way from each other. Each party has re-partnered and both are expecting the birth of a baby later this year. There is no evidence which would lead the Court to believe that the Respondent is presently at risk of physical abuse by the Applicant, either in the presence of the children or otherwise, nor is there any evidence that such risk is likely to arise in the foreseeable future.
21 Conversely, it seems to the Court that its decision on how much time each year the children should spend with the Applicant and how such time should be structured is not likely to be aided by any findings of fact concerning the Respondent’s actions around the making of the consent orders in [the North of the state] on
19 September 2005 and around her permanent relocation thereafter.
22 What is done is done and there is nothing the Court can do to rewrite history, even if what all of the parties are saying about each other is actually true. The time has well and truly arrived for both parties to put the past behind them and to move forward in their lives. This is a case about the welfare of the children. It is not a case about the parties and the object of the litigation was never to provide vindication to one party or the other regarding his/her allegations about the other. What the Court is looking for is the best outcome for the children, consistent with the considerations and principles enshrined in the Family Court Act 1997. The Court is focused on pronouncing a set of orders providing for the children to spend time with the Applicant so that their relationship with him may be enhanced, such orders being workable and addressing the legitimate competing concerns of the parties.
23 The Respondent has alleged in her affidavit material that the Applicant, having allegedly abused cannabis and alcohol over a long period of time, and still being likely to so abuse, should not be entrusted with the responsibility of caring for the children for any longer than she has proposed in her minute. In the witness box the Applicant flatly denied any current use of cannabis and his case is that the Respondent has exaggerated the facts in this respect. The Applicant certainly did not shift ground on this point under cross-examination.
24 The Respondent has also alleged that as the Applicant was physically and otherwise abusive to her during the course of their relationship, he is likely to repeat his misconduct in this respect during his present relationship and the children may witness such behaviour while spending time with the Applicant. The Respondent also relied on this contention in support of her case that the children spend no more time with the Applicant than she has proposed in her minute.
25 The Court’s findings on these points immediately above are not difficult to make. There is not sufficient evidence to satisfy the Court that the Applicant currently abuses alcohol and/or cannabis to the point where the Court should be concerned to limit his time spent with the children as a consequence thereof. Of course, the Respondent lives a long way from the Applicant and so it would be impossible for her to know about any consumption of alcohol and/or cannabis by the Applicant since the Respondent departed [from the North of the state]. The Applicant’s partner, [Ms H], did not give the Court any evidence which would lead it to have concerns about any
substance abuse on the part of the Applicant. Moreover, the evidence of [Ms H] could not lead the Court to conclude that she has been the victim of any abuse perpetrated by the Applicant. There is insufficient evidence for the Court to be able to conclude safely that the Applicant is likely to abuse [Ms H] into the future with the attendant risk that such abuse might be witnessed by the children.
26 So far as the issue of the amount of time the children should spend each year with the Applicant is concerned, there is no evidence to support the conclusion that the children require protection by the Court delivering the relatively slight reduction down from the Applicant’s proposal as is being proposed by the Respondent. There may be other reasons why the Respondent’s proposal in this respect should be preferred, but these would not include the matters the subject of paragraphs 23 and 24 hereof.
27 The argument regarding the proposed change of the children’s surname from “[T]” to “[G-T]” is a most sensitive one. The parties will appreciate that this is not the first time an application of this nature has been put to the Court. The Court’s experience is when such applications are not consented to, they are opposed most vigorously. The matter of a child’s identity with a parent is a matter of considerable importance to the parent concerned. In this case, the Respondent is saying to the Court that it should address the current reality in the children’s lives. The parties have not been married and there was no evidence that the Respondent used the surname “[T]” during the course of the parties’ relationship. It would appear that she was using her birth name of “[B]” at the time the consent orders were made in [the North of the state] in September 2005. The Respondent is now married to [Mr G] and she has adopted his surname and the child soon to be born of her marriage will carry the surname “[G]”. The Respondent argues that in the circumstances it is appropriate for the children to have some sense of identity with both parents (and new siblings) by having a blended surname.
28 For his part, the Applicant’s case is that the Respondent’s desire to change the children’s surname is further proof of her plan to excise him from the lives of the children and to replace him with [Mr G].
29 In deciding this question regarding the surname for the children going forward, there really are no factual issues which need to be determined. The issue will be decided by reference to legal principle, rather than on the basis of any particular finding of fact for or against either party.
30 The same applies to the argument over the way in which the children address [Mr G] on the one hand and the Applicant on the other hand. The children refer to [Mr G] as “Dad” whilst they are living with the Respondent and presumably they have so referred to him whilst spending time with the Applicant. Again, for reasons of identity and other reasons of emotion, this is something which deeply offends the Applicant. Further, in the Respondent’s home, the children refer to and have referred to the Applicant as [“Daddy O”]. Again, this is a matter of great offence to the Applicant. The only finding of fact which needs to be recorded at this point is simply that, as mentioned above, the Respondent holds the Applicant in very low regard. In cross-examination she was asked whether she believed that the Applicant could enrich the lives of the children. She replied that she could not see how. She admitted in cross-examination that she does not prepare the children for the telephone calls they
receive from the Applicant. She also admitted in cross-examination that she did not believe that it is in the best interests of the children to have to spend time with the Applicant, but said she felt she had no other options but to permit such contact. Notwithstanding the fact that the Respondent is obviously a person of above average intelligence with excellent verbal skills, it is not clear to the Court whether she understood completely the point of counsel’s questions to her in this respect. On the most charitable view of it, perhaps she simply could not bring herself to pay any compliment at all to the Applicant whilst acknowledging that he is still the father of the children and so an important figure in their lives. On the least charitable view of it, the Respondent’s words should be taken literally, meaning that she actually believes that the children would be better off if they were completely cut off from the Applicant.
31 There is a financial aspect to this dispute arising from the high cost of transporting the children to and from [the North of the state]. In her minute filed
13 February 2008 the Respondent has sought orders at page 8 thereof under the heading “CHILD SUPPORT ORDERS”. These are Family Court Act 1997 proceedings and in her Form 1A response the Respondent has not sought any orders under the Child Support (Assessment) Act 1989. It is open to the Court to make orders under the Family Court Act 1997 addressing the issue of the cost of transport necessary to give effect to a contact order. The Court will not be making any orders under the Child Support (Assessment) Act 1989.
32 The Applicant’s proposal regarding liability for the cost of travel to give effect to the Court’s orders for the children to spend time with him are set out, in somewhat verbose fashion it has to be said, at paragraphs 8, 9, 10 and 11 of his minute filed
21 February 2008. Stripped down, and notwithstanding a somewhat disingenuous turn of phrase, what the Applicant is proposing in effect is that the Respondent bear 100% of the cost by allowing him a credit against his child support liability to her of 100% of the money spent by him in acquiring air tickets for the children. That is to say, even though the opening to paragraph 8 of the Applicant’s minute speaks of him bearing “sole responsibility for the booking of and costs involved for contact in Perth”, this is misleading as he is asking for a 100% credit against his child support liability. So what he is really saying to the Court is that the Respondent should bear all of the cost out of the child support money to which she would otherwise be entitled.
33 The same observation could be made in respect of paragraph 10 of the Applicant’s minute. The Applicant proposes therein that until the Respondent is working on a full-time basis certain terms should apply. This is completely unhelpful to the Court in circumstances where it is obvious that the Respondent is not working full time, is due to give birth to a third child in the near future and is not likely to be a candidate for full-time work in the foreseeable future. Again in paragraph 10 the Applicant is proposing that he “bear sole responsibility for the costs involved for the Easter, July, September and long summer vacation holiday periods”, whilst adding that he wants a 100% child support credit for any money outlaid by him. Again, what the Applicant is really saying is that he wants the Respondent to bear the cost of such travel by accepting less child support money than that to which she would otherwise be entitled.
34 For her part, the Respondent is proposing at paragraphs 24 and 25 of her minute that, in effect, there should be a departure from the administrative assessment of child support extending right through to the 18th birthdays for the children individually. It is implicit that she does not offer to contribute at all to the cost of air travel. The Court has already indicated that it will not entertain any departure application under the Child Support (Assessment) Act 1989 purportedly made in a minute filed only a couple of weeks before trial in circumstances where no such relief was sought in the Form 1A response. In any event, the only way for a departure application properly to be entertained by the Court would be for the Court to find that both of the circumstances set out in subparagraph (b) of Section 116(1) of the Child Support (Assessment) Act
1989 apply. The Court is not so satisfied. There is provision in the child support legislation for parents to challenge administrative assessments of child support and it is obviously Parliament’s intention that such challenges, generally, be run administratively rather than being brought direct to Court. In cases where a Court is dealing with property settlement proceedings, it may be appropriate to rule on child support issues at the same time. However, that is not the case here.
35 On the subject of child support, the parties have been battling each other with vigour over child support issues ever since the date of separation. As the Court understands the relevant history, the first administrative assessment of child support to issue is that dated 29 November 2005, being part of Exhibit 5 to the Respondent’s affidavit sworn 27 February 2008. It required the Applicant to pay to the Respondent child support for the children at the monthly rate of $934.58 over the period
28 November 2005 to 1 February 2007. This first assessment was based upon a child support income amount for the Applicant of $55,000. Shortly after receiving this assessment, it would appear that the Applicant filed a notice containing a re-estimate of his likely income. As a consequence, on 13 December 2005 a second administrative assessment issued (again, being part of Exhibit 5 referred to above) requiring the Applicant to pay child support at the much lower rate of $21.67 per month over the period 28 November 2005 to 1 February 2007.
36 The Respondent was obviously dissatisfied with the decrease in the administrative assessment and it would appear that in about March of 2006 she exercised her rights under Part 6A of the Child Support (Assessment) Act 1989 to seek to increase the child support rate. In due course she was successful and, as the Court understands it, another administrative assessment issued, this time covering the period
1 May 2006 to 31 December 2007, requiring the Applicant to make payment under the statutory formula calculated by reference to a child support income amount for him of
$50,000.
37 Not surprisingly, the Applicant was dissatisfied with this last determination and it would appear that on or about 6 October 2006 he either made his own application under Part 6A or filed an objection under Part 6B. His application (or objection) was at least partially successful. Amongst other things the Applicant made reference to the high costs incurred by him in spending time with the children and at least on that front it would appear that he was successful. Although the child support income amount for him was left at $50,000, it would appear he received an annual reduction of $3,603 to reflect the high costs of spending time with the children. In the result, as the Court understands it, the Applicant has been assessed to pay to the Respondent child support
for the children, over the period 1 May 2006 to 31 December 2007, at the annual rate of $6,262.
38 It is clear that the Applicant still does not accept that $50,000 is the appropriate child support income figure for him in respect of the relevant child support period and it is also clear that he does not accept that he received sufficient credit for the high costs incurred by him which have permitted him to spend reasonable time with the children. Notwithstanding these reservations, the Applicant’s counsel told the Court during the trial that the Applicant does not intend to exercise any rights he may have to object to or appeal against the determination in force in respect of the child support period 1 May 2006 to 31 December 2007. At this point it should also be said that notwithstanding the Applicant’s reservations in respect of this particular child support period, it must be said that his child support liability spanning the period from the date of separation until 1 May 2006 has been only nominal.
39 A relatively fresh administrative assessment of child support issued with effect as from 1 January 2008. The assessed liability is $69.70 per month. Not surprisingly, the Respondent has exercised her rights under Part 6A. A decision regarding her Part
6A application was expected to be delivered within a short time of the trial and, obviously, prior to the delivery of this judgment. If history is any guide, it is likely that one or other party will be dissatisfied with the Part 6A determination. It is likely that the dissatisfied party will file the objection which is now permitted under the provisions of the Child Support (Registration and Collection) Act 1988.
40 The parties are now aware that there were significant amendments to the child support legislation insofar as it affects Western Australian ex-nuptial children which came into effect in the latter part of 2007. They are aware that the provisions regarding the challenging of child support administrative assessments have been substantially amended. They are now aware that there is a line of appeal from an objection under the Child Support (Registration and Collection) Act 1988 to the Social Security Appeals Tribunal (“SSAT”). The parties are also now aware that the statutory formula will change as from 1 July 2008, and that it is expected that child support liabilities will generally be reduced.
Applicable law
41 In the unreported decision of M and H [2008] FCWA 16, the Chief Judge of the Family Court of Western Australia set out comprehensively, at paragraphs 108 to 117 of the reasons for decision, the legal principles which apply to parenting disputes brought to the Court under the Family Court Act 1997. Although the judgment referred to concerned a dispute between two parents regarding a proposed equal shared-care regime, whereas this case is more about the definition of the time the children should spent with the Applicant, the legal principles set out therein are still necessary to consider and have relevance to this case.
42 His Honour determined that a decision of this nature must be made by reference to the relevant objects of the Family Court Act 1997 and the principles underlying them. The objects state that the best interests of children are met by:-
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
43 However, having recited these objects, the current law is clear and that is that the best interests of the particular children in the particular circumstances of any given case must remain the paramount consideration for the Court. In determining what the best interests of the children of the parties would be, the Court has to have regard to the provisions of section 66C of the Family Court Act 1997. As this case does not involve any dispute over the primary place of residence of the children nor any dispute over equal shared care, it is not considered necessary for the Court to work through each and every factor set out in section 66C(3) and to make specific findings in respect of each such factor. In many respects, this is a case which requires the Court to take a pragmatic approach to the resolution of the dispute with a view to delivering a set of workable orders which will advance the best interests of the children in circumstances where the parties live so far apart, have a poor relationship with each other and where both claim to be financially under resourced.
Discussion and conclusion
44 The Court will firstly determine how much time the children should spend each year with the Applicant and how such time should be structured. The first point to make is that there is no definitively right or wrong answer on this subject. There is nothing in the Family Court Act 1997 and no decided case which tells the Court that the children must spend any particular number of days each year with the Applicant. At page 1 of the Applicant’s written submissions tendered at the conclusion of the trial an argument was run that the Court should look to the 2005 consent orders [made in the North of the state] in order to calculate the number of days the children were originally intended by the parties to spend with the Applicant. However, this is not a helpful process because the consent orders were made in contemplation that the parties would be living close by each other whereas they are now separated by an extremely large distance. Perhaps at this point it might be recorded that in the Court’s view the only real assistance to be gained from a consideration of the 2005 consent orders is in the sense that the Respondent’s current criticisms of the Applicant’s care-giving capacity need to be considered in light of the fact that she agreed in 2005 that he should have very extensive contact with the children.
45 It should come as no surprise for the parties to read that the complicating factors in framing appropriate contact orders are mainly:-
(a) the vast distance between the homes of the parties, and also the distance between the Respondent’s home and the Perth airport; and
(b) the tender ages of the children, the elder being almost six years of age and the younger being only just four years of age.
46 Conventional wisdom has it that younger children benefit from shorter more frequent times spent with the parent who is not the primary caregiver. However, given the distance between the homes of the parties and the high cost of air travel, very frequent contact is not a practical reality. Ordinarily, where a parent is spending a considerable sum of money to fund air travel, the Court will tend to allow longer periods of contact than it might otherwise allow. However, here, the children are so young that the Court needs to be very careful when determining how much time they should spend away from their primary caregiver.
47 Insofar as summer school holiday contact is concerned, the Applicant is asking to spend 30 days (inclusive of 2 days’ travelling time) with the children in [in the North of the state] and the Respondent is proposing that the time be limited to 23 days (inclusive of two days’ travelling time). Fortunately, the parties are agreed that the Applicant should spend each second Christmas Day with the children and it appears to be agreed that the children should spend Christmas Day 2008 with the Respondent.
48 If the children were older, the Court would have little difficulty in making the summer time order which the Applicant seeks. The children are both still very young and on balance the Court considers it would be safer at this stage to limit the time they spend away from the Respondent to the time she has proposed. Hopefully, as the children grow older and thus learn to cope better with a reasonably lengthy separation from their primary caregiver, the parties themselves might bring themselves to an agreement to extend summer time contact. However, if history is a guide, perhaps there is no cause for optimism in this respect.
49 Next the Court must rule on the competing proposals of the parties regarding the time the children should spend with the Applicant during the holidays which follow the conclusion of terms 1, 2 and 3 of the school year. The Applicant wants to spend the whole of every July and September/October school holiday period with the children and also wants to spend one-half of each March/April school holiday period with the children. Presumably his proposal in respect of the March/April school holiday periods reflects a concession on his part that it would not be reasonable nor in the best interests of the children for them not to be able to spend any of the shorter school holiday periods at all with the Respondent.
50 For her part, the Respondent counter proposes that the children should spend the whole of every July school holiday period in [in the North of the state] with the Applicant and she further offers him the whole of the March/April school holiday periods in alternate years and the whole of the September/October school holiday periods in intervening years, meaning that if successful, she would have in any given year either the whole of the March/April school holidays or the September/October school holidays with the children. To “compensate” the Applicant for the lost opportunity to spend the whole or part of each of the shorter school holiday periods with the children, the Respondent proposes to allow some additional mid-term contact. It is implicit that the Respondent would like the opportunity to be able perhaps to go away with the children for the whole or the majority of a shorter school holiday period. There is nothing unreasonable in that stance.
51 On balance, and having weighed up the pros and cons of the competing proposals of the parties in this respect, and given that the Court has permitted only 23 days of summer school holiday time to be spent by the children with the Applicant, the Court finds itself preferring the Applicant’s proposal. Given the high cost of travel, the opportunity for the children to spend more than just a few days with the Applicant is one which is difficult for the Court to deny. The Court understands that the effect of its order is to limit the Respondent to being able to go away with the children only once per year during the shorter school holiday periods. However, on the upside, the gaps between visits of one week or more with the Applicant will be limited to just three months and these longer visits will be spaced evenly through the year and that must be a good thing for the children. Furthermore, it does need to be said that limiting the summer time visit to just 23 days in total means that the Respondent will have more than 50% of each summer school holiday period with the children and so she can plan to go away with them each summer and perhaps to plan something shorter each March/April. The Court will allow her to select in each year the particular half of the March/April school holidays she would like to spend with the children by giving the Applicant no less than 42 days’ notice.
52 The Court now needs to fix the arrangements mid-term for the Applicant to spend time in Perth (or thereabouts) with the children. He has asked at paragraph 3 of his minute to have one three-day period in each of the four school terms plus another three-day period on the weekend of Fathers’ Day (which generally falls in third term) plus in alternate years commencing 2009 another three-day period around [C]’s birthday (which should fall in second term) plus in intervening years commencing
2010 another three-day period around [F]’s birthday (which should fall either late in first term or at the commencement of the March/April school holiday period). That is to say, the Applicant seeks six “long weekend” visits per year.
53 The counter proposal from the Respondent is as set out in paragraph 5 of her minute, but it must be borne in mind such proposal was made on the assumption that the Court would rule in her favour in respect of the shorter school holiday periods. The Respondent has offered five “long weekend” visits per year.
54 On balance, the Court considers that the best arrangement for the children would be one involving five mid-term visits per year to be nominated by the Applicant on
42 days’ notice to the Respondent. Such visits should commence at 5.00pm Friday and conclude at 8.00am the following Monday, unless the Monday is a public holiday or a “pupil free” day at the elder child’s school. Furthermore, given that the Applicant will have the whole of the July and September/October school holiday periods with the children but only half of the March/April school holidays, there should be one mid-term visit in third term, another mid-term visit in fourth term with the remaining three mid-term visits to be taken either as two visits in term 1 and one visit in term 2 or alternatively as one visit in term 1 and two visits in term 2 as selected by the Applicant on 42 days’ notice. The idea of having three mid-term visits over terms 1 and 2 is to even out, as far as possible, the time the children will spend with the Applicant in the two halves of their school year. The Mothers’ Day weekend will be quarantined.
55 Given the considerable distance between the homes of the parties, the issue of telephone contact assumes greater than usual importance. The Applicant complains
that the Respondent does not encourage the children to communicate with him by telephone and in fact the Applicant herself did not dispute in cross-examination that she makes no effort to prepare the children to speak by telephone with the Applicant. However, to be fair to the Respondent, it does need to be said that the Court often hears from the primary caregiver that sometimes, despite the primary caregiver’s best efforts, a child, particularly a young child, is sometimes just not interested in talking on the telephone, particularly if a telephone call is made at a time when the child is engaged in some activity of interest to him/her. The problem here is that the Applicant is deeply suspicious of, and distrustful of, the Respondent and so it seems that if he has any difficulty engaging the children or either of them in conversation by telephone, he automatically blames the Respondent. This may not always be fair. Sometimes the Court is asked to make orders which require a party to “encourage” a child to speak on the telephone. The Court always has some degree of reservation in this respect, mainly because such orders are notoriously difficult to enforce and more often than not create more problems than they solve.
56 During the course of her evidence the Respondent told the Court that she thought the best time for telephone contact to take place was between the hours of 4.00pm and
5.00pm. The Respondent is proposing that telephone contact with the Applicant occur on the following days when the children are in her care, namely, Wednesdays and Sundays, the children’s birthdays, Christmas Day, Fathers’ Day and the Applicant’s own birthday. The Respondent has also asked that she be at liberty to telephone the children whilst they are in the Applicant’s care, again, on Wednesdays and Sundays and on the children’s birthdays and on Christmas Day.
57 The Applicant’s counter proposal is as set out in paragraphs 12 and 13 of his minute and there would appear to be no great dispute between the parties on this subject. Both parties have asked for a default position in the event there is a good reason why telephone contact cannot occur on a particular day. The Court is mindful of the need not to overcomplicate its orders. Suffice it to say that if for some good reason telephone contact by either party is not able to be made on a particular day as ordered, the party in whose care the children happen to be at the relevant time should act reasonably and responsibly to ensure that such contact occurs just as soon as possible after the scheduled time as is reasonably in the circumstances.
58 The next issue for the Court’s determination is the hotly contested dispute over the way in which the financial burden of giving effect to the Court’s final orders should be carried. This is an extremely difficult matter for the Court to determine properly, mainly because there are so many question marks around the financial evidence, and, if that was not unfortunate enough, there is uncertainty around the likely level of the Applicant’s child support liability to the Respondent as from
1 January 2008. As mentioned in paragraph 39 above, a relatively modest liability of
$69.70 per month was administratively assessed as being payable by the Applicant to the Respondent as from 1 January 2008. When the trial was concluded, the parties were still exercising their options under the child support legislation to have the administrative assessment reviewed. As at the time of the delivery of this judgment, the Court will not be aware of the outcome of the child support dispute and even if it was aware, the parties still have rights which extend to a hearing before the SSAT. It may well be quite a long time before the parties and the Court know for certain exactly how much child support the Applicant will need to pay to the Respondent as from
1 January 2008. Moreover, the impending changes to the statutory formula which will take effect in respect of all Australians caught by the child support scheme may well result in there being a different rate of child support payable by the Applicant for the six-month period 1 January 2008 to 30 June 2008 to that which will apply as from
1 July 2008 onwards.
59 The actual annual cost of airfares and related expenses to give effect to the Court’s orders is also difficult to calculate precisely. At the present time, both children need to be accompanied. This will change in 2010, as the Court understands it. Therefore, in school holiday periods, not only do the children’s own fares need to be met, the Applicant needs to make two return trips. In mid-term periods, whilst there are no airfares for the children to take into account, there is still a return airfare for the Applicant and there are accommodation costs he must meet in order to provide properly for the children whilst they spend time with him. Calculating all of these costs is a matter of imprecise science, mainly because there are so many different types of fares offered by the two airlines which service the [in the North of the state]/Perth route. That is to say, the level of fare will depend on a multiplicity of factors including the time to expire between booking and travel, the time of year and of course the time of day a particular flight begins and ends.
60 The financial positions of the parties are also not entirely clear, although the Respondent’s position is a little more straightforward. The Applicant has made much of the fact that the financial settlement formalised in [the North of the state] was heavily weighted in favour of the Respondent. In her financial statement the Respondent says that she received some $111,000 from the sale of the [former] property formerly occupied by the parties. However, it would appear that the value of the Respondent’s interest in the home she now jointly owns with her husband is only minimal. Otherwise, according to her financial statement, the Respondent has no income (other than for social security and child support payments). The Respondent’s husband, whose income is not directly relevant to this dispute, appears to be a person earning no more than an average type of income by today’s standards and he has a financial responsibility to a child born to him of a previous relationship and he will have an additional financial responsibility following the impending birth of the Respondent’s third child.
61 The Applicant too presents to the Court as a person of modest financial circumstances, although his case in this respect is rejected by the Respondent. According to his financial statement he has no interest in any real property and otherwise does not hold any other assets of significant net value. The subject of his income, as a self-employed person, is a matter of some controversy. He says in his financial statement that his weekly income from his business is $425 and he says his weekly tax liability is $113. His taxable income for the year ended 30 June 2006 was
$13,577 and for the year ended 30 June 2007 it was $18,455.
62 These figures are not accepted by the Respondent. She alleges that from her knowledge of the Applicant’s business activities during the course of their relationship, it is likely that the Applicant is earning income at a much higher rate but is not disclosing all of his income to the Australian Taxation Office, nor to her, nor to the Child Support Registrar and nor to the Court. Whilst the Court is bound to say that it is surprised at the relatively low stated level of the Applicant’s income, given that he
has to date carried very high costs of spending time with the children and has also carried very substantial legal fees, it does have to be said that there was evidence that he has been in receipt of some financial support from [Ms H]. A finding that a party has deliberately and materially misled the Australian Taxation Office (amongst others) by not fully disclosing taxable income is a most serious finding for the Court to make and of course there are certain evidentiary rules which must be applied if the Court is to make such a finding.
63 There was no audit of the Applicant’s finances carried out. The Respondent said all she could say about the subject of the Applicant’s likely income. She does not have the financial resources to consider the engagement of a forensic investigative expert to enquire into the financial affairs of the Applicant. At the end of the trial, whilst being left with a sense of some general discomfort regarding the financial evidence given by the Applicant, the Court could not be satisfied to the necessary standard of proof that the Applicant has deliberately misled the Court regarding his income.
64 In the result, at the present time, the Court cannot be sure about any of the following:-
(a) the likely cost on an annual basis of giving effect to the Court’s orders;
(b) how much child support the Applicant is likely to be assessed to pay to the Respondent as from 1 July 2008; and
(c) how much income the Applicant is likely to earn in 2008 and beyond into the next several years.
65 In the circumstances, until the child support assessment issues are resolved, it is just not possible for the Court to feel safe in making a final order regarding liability as between the parties for the cost of the Applicant spending time with the children. With great reluctance, the Court will leave the proceedings on foot, only insofar as they relate to the cost of giving effect to the Court’s orders, with liberty to both parties to apply for a further ruling. What the Court would contemplate is not that there be a further trial in the same sense as the parties have already experienced. Once the avenues of challenge under the child support legislation have been exhausted by the parties and there is certainty about the Applicant’s child support liability to the Respondent, the parties will be at liberty to file a further short affidavit each and rely upon the financial evidence already filed, then there can be an opportunity for the parties to each make submissions on the papers. There would be no need for the Applicant and/or his legal representative to travel to Perth for any such argument. It could be a matter capable of resolution by submissions made by telephone.
66 The subject of possible changes to the surnames of the children is always a particularly difficult one for the Court. People tend to have extremely strong views on this issue, and such is the case here. The Respondent wants the children to have a blended surname and the Applicant is implacably opposed to any such change. He is deeply suspicious of the motives of the Respondent and he asserts that her application in this respect marks another chapter of her plan to oust him from the lives of the
children and to replace him with her husband. The Applicant’s counsel has referred the Court to a couple of decisions which are cited at page 4 of the written submissions tendered to the Court. As is the case with parenting orders generally, it is the best interests of the children which must be the paramount consideration of the Court. That is to say, the Court will decide this issue in a purely objective fashion with its focus on the welfare of the children, rather than by reference to the sensitivities of either of the parties.
67 This is not a case where the primary caregiver is seeking to substitute a current partner’s surname in place of the surname of the other parent. That is to say, it is highly significant that what the Respondent is seeking to achieve is a blended hyphenated surname for the children combining the surnames used by each of the parties. It seems to the Court that what she is proposing is not unreasonable. True it is that the parties registered the children following their respective births with the surname [T] and it is most likely the case that at those times the parties contemplated that the children would be named [T] throughout the course of their respective childhoods. However, at the time of such registration probably neither party contemplated that the relationship would break down so badly so soon. The fact is that the relationship has broken down and will never be restored and so now there has been a quantum shift in the intentions of the parties as held at the time of the children’s births.
68 It seems to the Court that in these more enlightened days of gender equality there should not be any presumption that children must carry the surname of their father (or mother for that matter). It was once the law that a married woman was permitted to use the surname of her husband after she married and yet the same opportunity was not afforded to a man. Thankfully, the law in this respect has been changed and that is a reflection of movement in contemporary social thinking regarding the position of men and women in society. There should be no presumptions. There should be equality in gender issues.
69 The reality for the children in this case is that the relationship between their parents is forever extinguished. They are both very young and the younger child is not even yet of primary school age. Whilst both children have been known to date by the surname of [T], they both have much more of their respective childhoods in front of them than they have behind them. The Applicant’s partner will be giving birth in the not too distant future to a sibling for the children and so too will the Respondent. The child about to be born to the Respondent will be known by the surname of [G]. The children live in a household with two adults who carry the surname [G]. It is difficult to see why the children should not be able to have a surname which links them to the people with whom they actually live. It seems to the Court that if the children would carry the surname “[G-T]” then they would be linked to not just one parent but to both. There is no apparent reason why it would be better for the children to be more closely identified by surname with one party or the other. There is agreement for equal shared parental responsibility. Why should there not be a surname for the children which reflects in a practical way the equal shared parental responsibility?
70 The Respondent based part of her case for change of surname on the strength of her evidence that it is the children’s wish to change surnames as she seeks. Given that one child is not even six years old and the other is only just four years of age, it should
not come as any surprise that the Court has placed no weight at all upon this part of the evidence. There is no evidence before the Court which would satisfy it that the children’s relationship with the Applicant will in any way be diminished by a change of surname to a joint surname. The Respondent is not asking to do away with all connection to the name [T]. Had she done so, she would probably have been unsuccessful. On balance, the Court is satisfied that long term it would be better for the children to carry a blended surname which identifies them with both parents and allows them to be identified by name, to a significant extent, to the sibling soon to be born into their household.
71 The other issue of great sensitivity to the Applicant concerns his application for an injunction restraining the Respondent from permitting the children to refer to her husband as “Dad”. Again, this is a subject which often causes a great deal of angst in circumstances such as those prevailing in this case. Given the Applicant’s negative feelings towards the Respondent, he is convinced that the fact the children refer to [Mr G] as “Dad” is part of what he perceives to be an agenda on the Respondent’s part to undermine his position in the lives of the children. The experience of the Court is that it is not uncommon for a child to refer to a stepparent as either “Mum” or “Dad”. This is particularly so where such children live in a family unit with other children born to their own parent’s partner. For example, in this case the child soon to be born to the Respondent will, no doubt, in due course call [Mr G] “Dad”. It might create awkwardness for children in a household if they were to refer in different ways to the adults living therein. In this case, there will be a child born into the Applicant’s household in the not too distant future. The children will have frequent contact with that child, who will, no doubt, in due course refer to [Ms H] as “Mum”. It may well be that the children of these parties will also in due course refer to [Ms H] as “Mum”. This is life in contemporary Australia. There are many thousands of children whose parents have separated and who live primarily in blended families.
72 Apart from the offence which the wider use of the word “Dad” might cause to a father, provided children know exactly where all the adults in their life sit in their family tree, it seems to the Court that little damage is done if the description “Dad” is used to address both a step-father as well as a father. Having said that, whilst the children are in the Applicant’s care it is for him to control the way in which the children refer to [Mr G]. If he is not prepared to accept them referring to him as “Dad”, then so be it, and he has the authority to direct the children accordingly. However, it seems to the Court to be something of a stretch for him to ask the Court to make an order regulating the way in which the Applicant and her husband exercise authority over the children whilst they are in their care. There is a limit to the State’s powers to regulate the behaviour of its citizens in their own homes. The type of injunction being sought by the Applicant is again one of those injunctions notoriously difficult to enforce. In the circumstances of a case such as this, to make such an injunction is likely to give rise to further litigation. In the Court’s view, this could not be in the best interests of the children. It follows therefore that the injunction sought by the Applicant will not be granted.
73 The parties have asked the Court to consider making a host of other orders of lesser importance regarding such mechanical issues as handover arrangements and such long-term issues as future overseas travel for the children. The Court does not propose to make an all-encompassing set of orders intended to regulate each and every
possible aspect of parental responsibility for the children extending over the next 12 or
14 years. The parties both asked the Court to make an order for joint parental responsibility and the Court will do so. However, this concept contemplates that parents will make an effort to reach agreement on such issues concerning their children’s welfare as may arise from time to time. The parties must make an effort for the sake of their children to put their differences behind them and make a genuine attempt to solve at least some of their parenting disputes without coming to Court.
74 On the subject of handover arrangements, the Court will, if pressed, make orders defining the obligations of each of the parties, but it trusts that this will not be necessary. When the children travel to [ the North of the state] to spend time with the Applicant, in the Court’s view, the Respondent should deliver the children to the Applicant for collection at the Perth airport and the Applicant should return them to her at the Perth airport at the conclusion of their visit. The Respondent has expressed some concern about the children flying back to Perth from [ the North of the state] and arriving in the evening, around 9.00pm or so. She pointed out, not unreasonably, that given the length of the drive from the Perth airport to her home, an evening flight for the children means that they will return home very late in the night and this is difficult for them and difficult for the Respondent. Once again, the issue of cost is significant. As the Court understands it, often the flights which arrive in Perth later in the day are the cheaper flights. Whilst acknowledging the Respondent’s legitimate concerns on this point, it must be said that there are only four visits to [ the North of the state] each year and given the limited financial resources of the parties it is not unreasonable for the Applicant to seek to minimise the travel costs. On balance therefore, the Court would expect that in respect of the four trips to [ the North of the state] annually which will take place, handover take place at the Perth airport.
75 Insofar as mid-term visits are concerned, the Respondent has proposed that she deliver the children to the Applicant at the commencement of each visit (subject to the delivery address being no greater than 75 kilometres from the home of the Respondent) and that the Applicant return the children to her home at the conclusion of each visit. This seems to the Court to be a reasonable proposal. The Court will hear from the parties as to whether it is necessary to make defined orders regulating handover arrangements.
76 Otherwise, the Court does not consider it necessary to make any further parenting orders. Material being held under subpoena will be returned to source
35 days from the delivery of this judgment. There is a final “housekeeping” matter which needs to be dealt with and it concerns certain material forwarded to the Court by the Respondent between the conclusion of the trial and the delivery of this judgment. The Respondent, who has been self-represented throughout, has been in the practice of forwarding to the Court copies of her various communications with the solicitors for the Applicant. No doubt, this practice has been innocently and genuinely undertaken by the Respondent who has endeavoured to be open and transparent in her various communications. With the benefit of hindsight, the Court should have indicated to the Respondent at an early stage in the proceedings that it is not appropriate for copies of communications passing between parties to be sent to the Court. Of course, whenever a party writes to the Court, such correspondence must be copied to the other party, but the converse of this proposition does not hold. The Court wishes to stress that it does not consider that the Respondent has in any way
acted improperly, however it was concerned that correspondence should be forwarded to the Court between the conclusion of the trial and the delivery of this judgment. So, all of the material forwarded to the Court by facsimile and email since 11 March 2008 will be placed in an envelope to be returned to the Respondent. None of that material has been taken into account by the Court in the formulation of this judgment. The Respondent is asked not to continue the practice of forwarding to the Court copies of correspondence passing between her and the solicitors for the Applicant.
Orders
77 Subject to hearing from the parties regarding the form of the orders which properly should be made to give effect to these reasons, the Court would propose to make the following declaration and orders:-
IT IS HEREBY DECLARED THAT it is in the best interests of the children for their surname to be changed to [G-T].
IT IS HEREBY ORDERED THAT:
1.By consent, the parties have equal shared parental responsibility for the children, namely, [CT] born [in] June 2002 and [FT] born [in] March 2004 (“the children”).
2. The children spend time with the Applicant, [Mr T], as follows:-
(a) commencing in the 2008/2009 summer school holidays, and in alternate years thereafter, a minimum of 23 days (inclusive of
2 days’ travelling time), such period to conclude 2 clear days prior to the commencement of the first school term;
(b) commencing in the 2009/2010 summer school holidays, and in alternate years thereafter, a minimum of 23 days (inclusive of
2 days’ travelling time), such period to commence 2 clear days after the conclusion of fourth school term.
(c) the whole of each July and September/October school holiday period;
(d) one-half of each March/April school holiday period, as nominated by the Respondent no less than 42 days prior to the commencement of such period; and
(e) a total of 5 mid-term periods commencing 5.00pm Friday and concluding 8.00am the following Monday (extending to 5.00pm if such Monday is either a public holiday or a “pupil free” day for the elder child), with 3 of such periods to be taken over terms 1 and 2, such periods to be nominated by the Applicant on
42 days’ notice to the Respondent and to exclude Mothers’ Day weekends.
3.Whilst the children are in the care of the Respondent, she do all things reasonably practicable to facilitate telephone contact between the Applicant and the children, to occur between the hours of 4.00pm and 5.00pm, on the following days:-
(a) Wednesdays and Sundays;
(b) each of the children’s birthdays; (c) Christmas Day;
(d) Fathers’ Day; and
(e) the Applicant’s birthday.
4.Whilst the children are in the care of the Applicant, he do all things reasonably practicable to facilitate telephone contact between the Respondent and the children to occur between the hours of 4.00pm and 5.00pm, on the following days:-
(a) Wednesdays and Sundays;
(b) each of the children’s birthdays; (c) Christmas Day;
(d) Mothers’ Day; and
(e) the Respondent’s birthday.
5.The said proceedings, insofar only as they concern the issue of liability for the cost of giving effect to the provisions of paragraph 2 above, stand adjourned generally with liberty to both parties to apply to re-list on reasonable notice given after the Applicant’s child support liability to the Respondent as from 1 January 2008 has been finally determined.
6.Both parties have liberty to apply by Form 2 application and short supporting affidavit referred to the Case Co-ordinator for further orders strictly limited to the implementation of the provisions of paragraphs 2, 3 and 4 of these orders.
7.All material being held under subpoena be returned to source at the expiration of 35 days from the date of this order.
8. The said proceedings otherwise be and are hereby dismissed.
I certify that the preceding [77] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
Secretary
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