Urbina & Urbina
[2024] FedCFamC1F 179
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Urbina & Urbina [2024] FedCFamC1F 179
File number(s): SYC 3130 of 2021 Judgment of: ALTOBELLI J Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the parties agree for the children to live with the mother and spend time with the father – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility for limited issues – Where the parties disagree about the appropriate regime of CDT testing – Order for equal shared parental responsibility for limited issues – Order for CDT testing and permanent suspension of overnight time with the children for non-compliance.
FAMILY LAW – PROPERTY – Where the mother received a large sum of inheritance soon after separation – Where the mother seeks an asset-by-asset approach and separate pools for superannuation and inheritance – Where the father seeks a global approach and a 70:30 division of the property in the mother’s favour – Where the mother seeks a child support departure order – Where the Court splits the property into three pools and takes an asset-by-asset approach – Child support departure order declined.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79
Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bonnici & Bonnici (1992) FLC 92-272; [1991] FamCA 86
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Division: Division 1 First Instance Number of paragraphs: 147 Date of last submission/s: 12 February 2024 Date of hearing: 29 January – 1 February 2024 Place: Sydney Counsel for the Applicant: Ms Oakley Solicitor for the Applicant: Dobinson Davey Clifford Simpson Counsel for the Respondent: Ms Cohen Counsel for the Independent Children's Lawyer: Mr Francis Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
SYC 3130 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS URBINA
Applicant
AND: MR URBINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
PARENTING ORDERS
Parental responsibility
2.The Applicant mother (“the mother”) shall have sole parental responsibility for the children, X born 2012 , Y born 2012 and Z born 2014 (“the children”) in relation to medical, education and NDIS planning and for this purpose:
(a)The mother shall inform the Respondent father (“the father”) in writing (via email or WhatsApp) about decisions to be made, including any views she has and relevant information she has considered, 14 days prior to making the decision, save in the case of an emergency and then such notice is to be provided as soon as practical;
(b)The mother shall seek a response from the father in writing about the decision to be made;
(c)The father shall have seven days to respond to the mother’s email correspondence; and
(d)The mother shall inform the father in writing within seven days as to the decision she has made.
3.The parties shall otherwise have equal shared parental responsibility for the children for all remaining long-term decisions.
Live with and spend time arrangements
4.The children shall live with the mother.
5.The children shall spend time with the father as agreed, and failing agreement as follows:
(a)In Week 1: on Wednesday from the commencement of school (or 9.00 am) until 8.00 pm; and
(b)In Week 2: from the commencement of school (or 9.00 am) on Thursday until 8.00 pm on Sunday.
6.In the event the father produces a Carbohydrate Deficient Transferrin (“CDT”) reading in excess of 1.8 per cent, then:
(a)On the first occasion of a reading in excess of 1.8 per cent, time in accordance with Order 5 shall be suspended, with time implemented in accordance with Order 7 until such time that six months from the reading in excess of 1.8 per cent has lapsed and the father produces six consecutive CDT test results, once per calendar month, at or below 1.8 per cent, at which event, time in accordance with Order 5 shall be reinstated; and
(b)In the event of a second occasion of a reading above 1.8 per cent, time in accordance with Order 5 shall be permanently suspended, with time with the children implemented in accordance with Order 7 thereafter.
7.For the purpose of Order 6, the children shall spend time with the father as follows:
(a)In Week 1: on Wednesday from after school (or 3.00 pm) until 8.00 pm; and
(b)In Week 2:
(i)On Friday from after school (or 3.00 pm) until 8.00 pm;
(ii)On Saturday from 8.00 am to 8.00 pm; and
(iii)On Sunday from 8.00 am to 8.00 pm.
School holidays
8.Subject to Orders 6 and 7, the children shall spend time with the father during the term school holidays as agreed and failing agreement as follows:
(a)During the April Autumn holidays:
(i)In Week 1: with the father from 9.00 am on Wednesday until 8.00 pm on Sunday; and
(ii)In Week 2: with the mother.
(b)During the July Winter holidays:
(i)In Week 1: with the father from 9.00 am on Wednesday until 8.00 pm on Sunday; and
(ii)In Week 2: with the mother.
(c)During the September/October Spring holidays:
(i)In Week 1: with the mother; and
(ii)In Week 2: with the father from 9.00 am on Wednesday until 8.00 pm on Sunday.
(d)At all times the children are not spending time with the father, they are to live with the mother.
9.Subject to Orders 6 and 7, the children shall spend time with the father during the long Christmas school holidays as agreed and failing agreement as follows:
(a)In the first week: with the father from 3.00 pm on Wednesday until 8.00 pm on Sunday;
(b)In the second week: with the mother;
(c)Notwithstanding Orders 9(a) and (b), the children shall live with the mother from 28 December until the Sunday during the second week of January; and
(d)Time following Order 9(c) resumes in accordance with 9(a), commencing at 3.00 pm on the Wednesday immediately following the Sunday during the second week of January.
10.Subject to Orders 6 and 7, the children shall spend time with the parties during the Christmas Eve/Christmas Day/Boxing Day period as agreed and failing agreement as follows:
(a)In odd years with the mother from 10.00 am on Christmas Day until 8.00 pm on 27 December, or where it is the father’s weekend on 26 and 27 December, the children shall return to his care and spend time with him from 9.00 am on 26 December to 8.00 pm on 27 December; and
(b)In even years with the father from 10.00 am on Christmas Day until 8.00 pm on 27 December.
11.When time in accordance with Order 5 is suspended, so too shall Orders 8, 9 and 10 be suspended and time shall continue in accordance with the provisions of Order 7 during the school holidays.
Special occasions
Mother’s Day
12.Notwithstanding any other order herein, the children shall spend time with the mother, if not already doing so, on Mother’s Day from 9.00 am until 5.00 pm.
Father’s Day
13.Notwithstanding any other order herein, the children shall spend time with the father, if not already doing so, on Father’s Day from 9.00 am until 5.00 pm.
X
14.IT IS NOTED THAT:
15.Notwithstanding any other order herein, X shall live with the mother on the last day of February every year from after school (or 3.30 pm) until 8.00 pm if on a school day and if on a weekend, from 10.00 am until 8.00 pm.
16.Notwithstanding any other order herein, X shall spend time with the father on the first day of March every year from after school (or 3.30 pm) until 8.00 pm if on a school day and if on a weekend, from 10.00 am until 8.00 pm.
Y
17.Notwithstanding any other order herein, if Y’s birthday falls on a weekday, she shall spend time with the party whom she is not otherwise spending time with pursuant to these orders from after school or (3.30 pm) until 7.30 pm, and if on a weekend from 10.00 am until 2.00 pm.
Z
18.Notwithstanding any other order herein, if Z’s birthday falls on a weekday, she shall spend time with the party whom she is not otherwise spending time with pursuant to these orders from after school (or 3.30 pm) until 7.30 pm, and if on a weekend from 10.00 am until 2.00 pm.
Mother
19.Notwithstanding any other order herein, if the mother’s birthday falls on a weekday, the children shall spend time with her from after school (or 3.30 pm) until 7.30 pm, and if on a weekend from 10.00 am until 2.00 pm, unless they are otherwise spending time with the mother pursuant to these orders.
Father’s
20.Notwithstanding any other order herein, if the father’s birthday falls on a weekday, the children shall spend time with him from after school (or 3.30 pm) until 7.30 pm, and if on a weekend from 10.00 am until 2.00 pm, unless they are otherwise spending time with the father pursuant to these orders.
Changeovers
21.All changeovers shall take place at the children’s schools and when not a school day, all other changeovers shall occur at the mother’s residence and the father shall ensure the children’s entry to the residence.
Communication and notification
22.Unless there is an emergency, all communication between the parties shall be conducted on WhatsApp, SMS or email.
23.The mother and the father shall respond to the other within 24 hours on any communication regarding the children, unless urgent wherein they shall respond as soon as practicable.
24.In the event either party is running late to changeover, they shall notify the other party as soon as practicable and when the father is running late to collect the children from an activity or medical appointment, he must notify the place where the children are as soon as practicable.
25.In the event the father has his driver’s licence suspended or disqualified in any State or Territory, or any conditions placed thereon including any interlock device, he must notify the mother in writing within seven days of the event causing such suspension or disqualification or any conditions, and provide the mother with a copy of any communication (letters, emails or otherwise) from the relevant Government authority (including Police and/or any Court) setting out the reasons why his licence has been suspended or disqualified or conditions placed on his driver’s licence.
26.The parties shall facilitate telephone or FaceTime communication between the children and the other party at all times as may be requested by the children.
27.In the event the father facilitates the children traveling more than 100 km outside the Sydney region, he shall provide not less than seven days’ notice of any such travel and for this purpose:
(a)The notification shall be in writing by email; and
(b)The notification shall include the location the children are travelling to, the address of where they are staying and contact telephone number for their accommodation.
28.In the event the children sustain any medical problem, injury, illness, medical emergency or hospitalisation whilst in the care of either party, the party in whose care the children are in shall immediately notify the other party where possible via SMS, and in any event, within two hours, with the other party to be advised of the name of the treating doctor, hospital and medical contact number and nature of the problem.
29.The mother shall provide to the father the names and addresses of the children’s treating doctors, dentists, counsellors and health care providers/medical practitioners, with such information to be kept up to date at all times and with such information to be provided within seven days of any change.
30.The mother shall ensure the father’s name is included on any application for any school and that the school is permitted to forward to the father all notices, school reports and other documents and information usually received by parents, at the father’s expense and subject to any school policy thereto.
31.Each party shall inform the other and keep them informed within 48 hours of any change to their residential address, postal address, email addresses, landline and mobile telephone numbers and those of the children.
Authorities
32.These orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats the children to provide information to the other parent upon request by the other parent, to the extent permitted by law.
33.Each parent is permitted to liaise directly with the children’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the children’s progress; and these orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
34.These orders are authority for the children’s school to provide to both parents copies of the children’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
35.Each parent is permitted to attend parent-teacher interviews, concerts, carnivals and other events involving the children’s school, or in the context of extra-curricular activities to which parents are ordinarily invited, even if that event occurs at a time when the children are in the care of the other parent pursuant to these orders.
The father’s psychological support
36.If the father has not already done so, within 30 days of the date of these orders, the father shall do all things and sign all documents as may be necessary to engage with services of a suitably qualified clinical psychologist who has experience with patients who suffer from “alcohol misuse disorder”, for therapy with a specific focus on alcohol reduction, goal setting, and general parenting assistance/coaching, and for this purpose:
(a)The father shall notify the mother within seven days of these orders of the psychologist, including providing their practice name, contact telephone number and email;
(b)The father shall be solely liable for any fees payable for the therapy;
(c)The father shall provide a copy of these orders and a copy of the Single Expert Report of Dr D dated 23 June 2022 (“the Report”) to the psychologist, copying the mother into that email, and if the father does not comply within seven days prior to his first appointment, the mother shall provide these documents to the psychologist;
(d)The father shall attend all sessions at whatever frequency as directed by the psychologist; and
(e)The father shall give authority to the psychologist to notify the mother of any missed sessions or non-attendances by the father.
CDT testing
37.The mother shall be at liberty to elect for the father to undertake CDT testing on the following terms:
(a)Not more than once per calendar month, for a period of not more than 36 months;
(b)Thereafter not more than once per calendar month and no more than four times per year until such time as X attains the age of 18;
(c)Within two days of such election, the father shall forthwith do all things necessary to pay for and submit to a chain of custody under supervision CDT assessment conducted by B Pathology or C Pathology; and
(d)The father shall authorise and direct the testing facility and their General Practitioner to forward the results of the CDT test on each occasion of testing to the mother at her email address “[...]”.
Injunctions
38.The parties are hereby restrained by injunction from:
(a)Discussing any aspect of these proceedings with the children except to explain to them the arrangements set out in these orders;
(b)Showing any of the children correspondence or the Court documents about matters in dispute between them, including any that have been prepared on their behalf by their lawyer, and/or sent to, and/or received by one another’s lawyers, including allowing the children to engage in the behaviour with each other as described above; and
(c)Speaking or communicating in a manner that is insulting, belittling, rebuking or denigrating of each other or each other’s family members, or allowing any other person to do so in the hearing or presence of the children.
39.The parties are further restrained by injunction from:
(a)Consuming alcohol and/or illicit substances or drugs without a prescription 24 hours prior to the children coming into their care; and
(b)Consuming alcohol and/or illicit substances or drugs without a prescription whilst the children are in their care.
Travel
Passports
40.Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth), the children shall be:
(a)Permitted to have an Australian Travel Document; and
(b)Permitted to travel internationally.
41.The mother shall retain possession of the children’s passports and the cost of any application or renewal for the children’s passports shall be shared equally between the parties.
42.Where the children’s passports are lost or stolen whilst in the care of either party, that party shall replace the passports at their own cost and must do so within six weeks.
Overseas travel
43.Pursuant to s 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth) (“the Act”), the mother shall be permitted to remove the children from the Commonwealth of Australia during any period the children are living with her on the following conditions:
(a)The mother shall inform (in writing by email) the father at least four weeks prior to the intended departure date, of her intention to travel overseas with the children;
(b)The mother shall meet all expenses associated with the trip;
(c)Not less than 30 days prior to the proposed trip, the mother shall provide the father with a copy of return plane/travel tickets and an itinerary of the travel (with the itinerary to include overseas phone numbers, flight details and hotel/ accommodation details);
(d)Not less than 30 days prior to the overseas trip, the father is to sign and return to the mother all necessary visa applications, if so required;
(e)Not less than 14 days prior to the overseas trip, the mother shall provide the father with the locality of where the children will be staying and a contact phone number and email address on which the children can be reached; and
(f)Where possible the mother is to facilitate telephone and preferably video calls via FaceTime or similar between the father and the children, at least once per week.
44.Pursuant to s 65Y(1)(c)(i) of the Act, the father shall only be permitted to remove the children from the Commonwealth of Australia with the written consent of the mother during any period the children spending time with him (or such other time as may be agreed by the mother) on the following conditions:
(a)The father shall request permission (in writing by email) from the mother at least six months prior to the intended departure date, unless otherwise agreed, of his intention to travel overseas with the children and if permission is granted by the mother, the following clauses shall apply to the travel arrangements:
(i)The father shall meet all expenses associated with the trip;
(ii)Not less than two months prior to the proposed trip, the father shall provide the mother with a copy of return plane/travel tickets and an itinerary of the travel (with the itinerary to include overseas phone numbers, flight details and hotel/ accommodation details);
(iii)Not less than one month prior to the overseas trip, the mother is to sign and return to the father all necessary visa applications, if so required;
(iv)Not less than one month prior to the overseas trip, the father shall provide the mother with the locality of where the children will be staying and a contact phone number and email address on which the children can be reached;
(v)Seven days prior to the travel, the mother shall deliver the children’s passports to the father for the purpose of the overseas travel;
(vi)Where possible the father is to facilitate telephone and preferably video calls via FaceTime or similar between the mother and the children, at least once per week; and
(vii)Within seven days of return from the overseas travel, the father shall deliver the children’s passports to the mother.
Travel – ability to nominate
45.The mother shall be at liberty to nominate once in a two year cycle, starting in 2024, to suspend the children’s time with the father for the purpose of facilitating the children’s travel with the mother, with the mother to make such a nomination for during the following periods only on two occasions per cycle, unless otherwise agreed:
(a)During the term school holiday period between Term 2 and Term 3 for the entirety of that holiday period; and/or
(b)During the long Christmas school holidays for a period of up to five weeks,
and for this purpose, where the mother is traveling overseas with the children, the provisions of Order 43 applies.
46.The mother must give three months’ notice to the father of her intention to exercise the children’s time with her in accordance with Order 45, unless otherwise agreed in writing, with such notice to be in writing by email.
The children’s schooling
47.In the event any of the children are suspended, expelled or otherwise required to continue or later engage/return to Distance Education, the following shall apply:
(a)The mother shall facilitate the children’s attendance at home for Distance Education during school time during any period the children are living with her; and
(b)The father shall facilitate the children’s attendance at home for Distance Education during school time during any period the children are spending time with him.
Section 121 of the Act
48.The mother shall be at liberty to provide a copy of these orders to anybody she considers relevant to the care and welfare of the children including but not limited to any school the children attend from time-to-time, the Department of Foreign Affairs Passport Office, and any treating medical practitioners engaged for the children.
The father’s engagement with X’s treaters
49.Within 28 days, the father shall do all things as may be necessary to engage with X’s treating psychologist and occupational therapist for the purpose of understanding:
(a)The treatments, services and support provided to X;
(b)X’s needs; and
(c)Strategies he can implement to best support X and his particular needs.
PROPERTY ORDERS
Bank accounts
50.Within 30 days of the date of these orders, the mother shall do all things as may be necessary to cause any funds standing to the credit of the E Bank Account …00 to be paid to the father.
Declaration
51.Pursuant to s 78 of the Act, the mother shall be declared the sole legal and beneficial owner of her interest in the Estate of the Late Mr F (subject to Grant of Probate dated mid-2022), to the exclusion of the father.
Indemnities
52.From the date of the orders, except as provided to the contrary by the foregoing paragraphs of the orders, the father will do all acts and things necessary to indemnify, and keep indemnified, the mother from and against all liabilities of the father including, but not limited to:
(a)All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the father’s interest in any business or real property, or personal finances;
(b)Taxation (including Capital Gains Tax); and
(c)Duties (including stamp duty).
53.From the date of the orders, except as provided to the contrary by the foregoing paragraphs of the orders, the mother will do all acts and things necessary to indemnify, and keep indemnified, the father from and against all liabilities of the mother including, but not limited to:
(a)All liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the mother’s interest in any business or real property, or personal finances;
(b)Taxation (including Capital Gains Tax); and
(c)Duties (including stamp duty).
Superannuation
54.In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the father (Mr Urbina), from his interest in Superannuation Fund 2 membership number …, the mother (Ms Urbina), is entitled to be paid (by the trustee of Superannuation Fund 1) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using the base amount $167,159.76 and there shall be a corresponding reduction in the entitlement the father would be entitled to receive but for these orders.
55.The operative time for Order 54 is four business days after service of the final sealed orders on the trustee of Superannuation Fund 2.
56.Order 55 binds the trustee of Superannuation Fund 2.
Other property
57.Subject to any other order to the contrary, the mother and the father shall be solely, legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these orders, or to which he or she may become entitled after the making of the orders including but not limited to money on deposit, artwork, sporting memorabilia, jewellery, shareholdings, insurance policies, inheritances, motor vehicles and personal effects.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Urbina & Urbina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between two parents about their children, and about the division of their property. The first part of these reasons will deal with parenting, and the second with property and child support.
BACKGROUND
The mother is the applicant in this matter (“the mother”). She is 45 years old and is unemployed, referring to herself as the primary carer of the parties’ children. The father is the respondent (“the father”). He is 46 years old and is currently employed as a driver, although he worked in high-paying positions in IT until late 2023.
The parties commenced cohabitation in or around 2008, married in 2009, separated on 20 February 2021, and were divorced in mid-2022. Neither party has re-partnered.
There are three children of the marriage, X who is 11 years old, Y who is 10 years old, and Z who is nine years old (“the children”). X has high special needs and has been diagnosed disorders including Autism and Attention Deficit Hyperactivity Disorder (“ADHD”). Y was also diagnosed with ADHD in 2022.
Orders were made on a final basis on 20 March 2023 for the children to live with the mother. Prior to the final hearing and pursuant to orders made on 25 November 2021, the children spent time with the father in Week 1 from after school on Wednesday until 7.30 pm, and in Week 2 from after school on Friday until the commencement of school or 9.00 am on Monday, with X being returned to the mother or delivered to a scheduled psychologist’s appointment. On 1 February 2024, the last day of the final hearing, orders were made by consent and pending further order for the children to spend time with the father in Week 2 from after school on Thursday (or 3.00 pm on a non-school day) until 8.00 pm on Sunday, to commence the week of 12 February 2024.
The parties are largely in agreement about the living and spend time arrangements for the children. The central parenting issues relate to parental responsibility, as well as the father’s consumption of alcohol and the appropriate regime of Carbohydrate Deficient Transferrin (“CDT”) testing, which will be discussed below.
This matter came before me on 29 January to 1 February 2024 after being transferred to Division 1 because of the full judicial calendar in Division 2. All parties were represented by counsel. It is noted that the father’s solicitor filed a Notice of Withdrawal as Lawyer on 5 December 2023, and thus the father’s counsel had no instructing solicitor and was directly briefed by him. The Court observed no discernible disadvantage to the father because of this.
THE EVIDENCE
In support of her case, the mother relies upon the following:
(a)Outline of Case Document filed 25 January 2024;
(b)Further Amended Initiating Application filed 19 December 2023;
(c)Her affidavit filed 19 December 2023;
(d)Her affidavit filed 23 January 2024;
(e)Affidavit of Ms G filed 21 December 2023;
(f)Financial Statement filed 19 December 2023;
(g)Various documents tendered and marked as Exhibits A1–A38; and
(h)Written submissions filed 6 February 2024.
In support of his case, the father relies upon the following:
(a)Case Outline filed 24 January 2024;
(b)Amended Response to Initiating Application filed 23 January 2024;
(c)His affidavit filed 16 January 2024;
(d)Financial Statement filed 24 January 2024;
(e)Various documents tendered and marked as Exhibits R1–R12; and
(f)Written submissions filed 12 February 2024.
In support of their case, the Independent Children’s Lawyer relies upon the following:
(a)Outline of Case Document filed 27 January 2024;
(b)Single Expert Report of Dr D dated 23 June 2022;
(c)Various documents tendered and marked as Exhibits ICL1–ICL2; and
(d)Written submissions filed 5 February 2024.
The mother, the father, and the single joint expert, Dr D (“Dr D”) were cross-examined. Ms G was not required for cross-examination by the father.
THE PARENTING CASE
Applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Competing proposals
In her Minute of Final Order received on 1 February 2024, the mother seeks sole parental responsibility for the children (with provisions to consult the father), and for the children to live with her and spend time with the father in Week 1 from the commencement of school (or 9.00 am) to 8.00 pm on Wednesday and in Week 2 from the commencement of school (or 9.00 am) on Thursday to 8.00 pm on Sunday. She proposes that the children spend time with the father from 9.00 am on Thursday to 8.00 pm on Monday in one week during the short school holidays, and from 3.00 pm on Thursday to 8.00 pm on Monday during the Christmas school holidays (excluding the period 28 December to the Sunday in the second week of January). There are provisions for additional time on special occasions.
The mother further seeks for the father to be restrained by injunction from consuming alcohol, illicit substances or non-prescription medication 24 hours prior to the children coming into his care, or when the children are in his care. She proposes a regime of CDT testing whereby she will be at liberty to elect for the father to undertake testing not more than once per calendar month for 36 months, and thereafter not more than once per calendar month and no more than four times per year until early 2030 when X is aged 18. The father is to authorise the testing facility and his GP to forward the results of the CDT tests to the mother. If the father produces a CDT test result of 1.8 per cent or higher or fails to undertake the CDT test in the required time, his time with the children will reduce and be daytime only until he produces six consecutive CDT tests, once per calendar month, showing a result of 1.7 per cent or less. If the father produces a CDT test result of 1.8 per cent or higher on a second occasion, the children’s time will permanently reduce to daytime only (being Wednesday afternoon in Week 1, and Saturday and Sunday in Week 2).
The wife also seeks for the father to engage with the services of a suitably qualified clinical psychologist who has experience with patients who suffer from “alcohol misuse disorder”, and for therapy with a specific focus on alcohol reduction, goal setting, and general parenting assistance/coaching and for that purpose. She further proposes that the father engage with X’s treating psychologist and occupational therapist to understand his treatments, needs, and strategies to implement. There are additional orders relating to communication, travel, passports and schooling.
The father’s proposal evolved during the hearing. On the afternoon of the third day of the hearing, after the conclusion of the cross-examination of both himself and Dr D, the father’s counsel informed the Court that the father now adopted the orders sought by the Independent Children’s Lawyer at the commencement of the hearing. Although, at that point, counsel for the Independent Children’s Lawyer advised that the orders now sought by the Independent Children’s Lawyer had changed, adverse to the father. Of significance, the father initially sought that the parties be restrained from drinking no more than four standard drinks per day (and no more than two standard drinks per hour) when they have the care of the children. He also did not propose any orders in relation to CDT testing or continuing engagement with a psychologist.
In his Minute of Final Order received on 1 February 2024, the father seeks for the mother to have sole parental responsibility in terms of medical, education and NDIS planning, with the parties to have equal shared parental responsibility for all remaining long-term decisions. He proposes for the children to live with the mother and spend time with him in similar terms to the mother, that is, in Week 1 on Wednesday from after school (or 3.00 pm on a non-school day) to 8.00 pm, and in Week 2 from after school (or 3.00 pm on a non-school day) on Thursday to 8.00 pm on Sunday. If X reverts to Distance Education and the father is employed in a situation where he needs to work on Fridays, he proposes to deliver X to the mother at 8.30 am and pick him up at 3.00 pm on Fridays. The father has a similar proposition regarding time spent with the children during school holidays and special occasions, albeit from Wednesday to Sunday rather than Thursday to Monday in the short school holidays, and Weeks 1 and 2 switched around in the Christmas school holidays.
The father proposes a similar injunction to the mother, restraining him from consuming alcohol, substances or non-prescription drugs 24 hours prior to the children coming into his care and while they are in his care. He further proposes that the mother be at liberty to elect for him to undertake CDT testing no more than once per calendar month for a period of no more than 12 months. If he registers a result more than 1.8 per cent, this requirement will remain until he has maintained a reading not in excess of 1.8 per cent for 12 consecutive months. He will authorise the testing facility and his GP to forward the results of the CDT tests to the mother. If he produces a result more than 1.8 per cent, his time with the children will reduce and be daytime only (being Wednesday afternoon in Week 1, and Friday afternoon, Saturday and Sunday in Week 2), with time to be reinstated when he produces a result within the normal range. The father proposes orders regarding psychological assistance in almost identical terms to the mother.
In her Minute of Final Order, amended after the cross-examination of Dr D on the third day of the final hearing, the Independent Children’s Lawyer seeks for the mother to have sole parental responsibility in terms of medical, education and NDIS planning (with provisions to consult the father), with the parties to have equal shared parental responsibility for all remaining long-term decisions. She proposes identical orders to the father regarding living with the mother, and time spent with the father during the school term, school holidays and special occasions.
The Independent Children’s Lawyer seeks the same injunction regarding the consumption of alcohol and illicit substances as both parents, and the same regime of CDT testing as the mother. If the father produces a result more than 1.8 per cent, on the first occasion his time with the children will reduce and be daytime only (albeit an extra afternoon than proposed by the mother), until six months after the excess reading and the production of a result at or below 1.8 per cent. If there is a second occasion where the father produces a result above 1.8 per cent, the reduced time will become permanent. The Independent Children’s Lawyer seeks orders regarding the father’s psychological assistance in terms identical to the father. She also seeks orders regarding the father’s engagement with X’s treating professionals in terms similar to the mother, although not including X’s occupational therapist. There are additional orders regarding communication, notification, and authorities.
Findings about the evidence
It is to the parties’ credit that they were able to reduce the issues in dispute during the hearing. Nonetheless, important issues remained in dispute and require the Court’s adjudication. The evidence of the parties contrasted in some significant respects. It is necessary to make some brief observations about credit in the circumstances. To some extent, the Court acknowledges, credit findings also reflect parental attitudes about parenting, but this will be discussed more fulsomely below.
When the father was cross-examined about his alcohol consumption, the Court found his responses to be evasive and lacking the specificity that might normally be expected in a case where the father had ample time to consider what was obviously a critical issue in this case. The Court finds the father to be an unreliable historian about his own alcohol consumption. In relation to financial matters, cross-examination demonstrated the glibness and implausibility of the father’s evidence about the circumstances in which he lost his most recent employment, and his efforts to regain employment.
The cross-examination of the mother revealed a distinct tendency to embellish and exaggerate at times. This was clearly apparent in relation to the frequency and duration of the father’s work-related absences from home, in the context of the role that the father played in parenting the children.
These matters will be considered in assessing the weight to be given to the evidence of the parents.
Discussion
The main issues that arise for determination, therefore, are as follows:
(1)Parental responsibility, and specifically whether the mother should have complete sole parental responsibility (proposed by herself) or whether she should have sole parental responsibility limited to the children’s medical, education and NDIS planning, with the parties to otherwise have equal shared parental responsibility for the children for all remaining long-term decisions (proposed by the father and the Independent Children’s Lawyer);
(2)What CDT testing regime should be imposed on the father including the consequences of test results above 1.8 per cent; and
(3)Whether an order should be made that the mother be restrained from changing the children’s surnames notwithstanding the fact that she did not press an order that the surnames be changed.
A number of consequential issues of lesser importance also arise, mainly due to the slightly different proposals of the parties and Independent Children’s Lawyer about aspects of the parenting orders. These issues will be determined by reference to all the evidence, both expert and lay, and the submissions made (where applicable) and with a focus on making practicable child focused orders.
Evidence of the single joint expert, Dr D
Dr D's Single Expert Report
Dr D's Single Joint Expert Report is dated 23 June 2022 (“the Report”). Dr D made it clear that the children have positive loving relationships with both parents and that they have not experienced, and are not at risk of, any physical or psychological abuse. Both parents acknowledge that the children love the other parent, and that both parents love the children.
Dr D described the mother as serious, logical, and well-mannered with her responses to questions being appropriate in form, content and detail. She described the father’s responses as being limited, vague and non-responsive, and explained that he had difficulty recollecting details or concentrating on the question at hand, and that he often needed to be prompted for further detail. The Court makes similar observations about the parents’ responses during cross-examination, albeit that the mother had the tendency to exaggerate or embellish at times.
While Dr D thought the parents have remained in high conflict, she believed the children have been largely shielded from this conflict and that both parents have supported the children’s relationship with the other parent.
Dr D emphasised that in determining any appropriate parenting arrangements, special consideration needs to be given to X’s needs, as he is “exquisitely sensitive” to changes in his routine, different parenting styles, practices and schedules. Otherwise, there is a long-term risk to his educational, social and psychological wellbeing.
In the Report, Dr D did not give a specific opinion about parental responsibility, however she made some relevant observations. The father described the mother as a confrontational and high conflict person, where she would dominate him and he would retreat, and they had no capacity to communicate after a conflict (lines 646–649 of the Report). He was concerned about the way the mother makes decisions and her pattern of conflict, as well as the way she excludes him from parental decision-making and seems to make decisions on her own (lines 670–672 of the Report). He said there were issues with a lack of communication, failure to resolve issues, differences of conflict styles and a build-up of animosity (lines 656–657 of the Report). He thought it was very important for both parents to be actively involved in decision-making so that decisions are balanced, and he wanted “structures to keep [the mother] accountable” (lines 776–779 of the Report). The mother said that a significant problem was that the father would agree to do something in therapy, but then renege on that agreement and will otherwise only communicate through legal channels (lines 376 – 378 of the Report).
Dr D opined that the parents remain in significant conflict, particularly with respect to care of the children and differences in parenting styles. The mother asserts that the father presents a risk to the children and that he has not demonstrated any real commitment to addressing her parenting concerns or improving his parenting skills. The father asserts that the mother is overly critical of him and does not accept that he is a capable and loving parent who is an asset to the children (lines 1076–1080 of the Report). Dr D observed that the mother has been the children’s primary carer and was responsible for most aspects of their day-to-day routine including home-schooling (during the COVID-19 lockdown), medical and health appointments, and extra-curricular activities (lines 1062–1067 of the Report). In contrast, the father continues to have some passivity with respect to parental responsibility and to the duties and responsibilities of parenthood, often blaming the mother for things he is responsible for (e.g., being critical of the mother for not being included in X’s care, but never proactively seeking out information or contacting X’s practitioners), and relying on the mother to meet many of the children’s educational, health, medical and social needs (lines 1185–1192 and 1229–1234 of the Report). During the interview the father told Dr D that there has been difficulty complying with orders and that it seemed “unfair” that the orders required him to complete a parenting course before overnight time commences, further highlighting his passivity and lack of insight regarding parental responsibility. Dr D also suggested that the children may not yet understand that the father has the same sort of parental involvement or authority as the mother (lines 1119–1121 of the Report). She indicated that the parents would benefit from ongoing family therapy to assist them with communication (lines 1241–1242 of the Report).
In the Report, Dr D was strongly of the view that the father has an alcohol use disorder. At interview, the father reported a pattern of binge drinking which was consistent with alcohol use disorder, including drinking 15–20 alcoholic drinks on a weekly or fortnightly basis on social occasions (lines 534–540 of the Report). However, he denied experiencing withdrawal symptoms, medical concerns related to alcohol, or losing consciousness due to intoxication (lines 562–656 of the Report). He said he typically does not drink during the week, when he is at home by himself, or when the children are with him, but conceded that he used alcohol as an escape when there was tension during the marriage and would binge drink about three times per week (lines 558–562 of the Report). He agreed that his alcohol consumption affected his marriage, but denied it affected his parenting capacity (lines 567–569 of the Report).
Dr D was concerned that despite the scrutiny of the Court, these proceedings, a known regime of CDT testing, and high motivation (including increased time with the children), the father has been unable to curtail his binge drinking (lines 1300–1305 of the Report). This diverges from the father’s own assertion that he would be able to immediately curtail his alcohol consumption without any difficulty to comply with any orders and spend time with the children (lines 570–573 of the Report). She opined that the father has a misguided view that because he only drinks “socially” and does not drink every day, he is not dependent on alcohol. Of significance was the father stating that during his periods of sobriety (e.g., his attendance at a a support group coinciding with his two-year abstinence from alcohol) “I’m a bit boring without alcohol or I find people quite boring without alcohol” (lines 556–557 of the Report). She believes that the father has associated alcohol with stress relief and social engagement and has based his social life on very high levels of alcohol intake (lines 1308–1309 of the Report).
Dr D was further concerned about the effect of the father’s alcohol consumption on his general health, motivation, mood and overall functioning (lines 1310–1311 of the Report), and consequently his parenting. She stated that his current level of alcohol intake would directly affect his parenting even when he is not drinking, including his capacity for vigilant supervision of the children, his overall health and sleeping patterns, and his capacity to exhibit behavioural self-control and patience (lines 1313–1316 of the Report). This is especially significant in circumstances where Dr D observed the dynamics between the children to be very energetic and requiring a great deal of vigilance, supervision, and management (lines 907–909 of the Report), with X’s affect dramatically changing with little warning (lines 916–917 of the Report). Dr D opined that the father has more limited experience in providing the children with vigilant supervision, underestimates the degree of vigilance and supervision required to meet the children’s needs, and has limited awareness as to the need to vigilantly supervise the children in a new or strange situation (lines 1158–1184 of the Report). Dr D commented on the fact that he did not even notice when X ran out of the room during her observation, and she had to go and find him herself (lines 981–983 of the Report). The father conceded during cross-examination that there have been occasions when X has left the house and he has not been immediately aware. When asked by counsel for the Independent Children’s Lawyer what he has done to address these concerns, the father said, “I’m not sure what I’ve done”.
The Court notes that Dr D considered the father’s concern that the mother also consumed an inappropriate amount of alcohol but concluded that while there may have been times when she was drinking more alcohol than she ordinarily might, there is no indication that the mother meets the criteria for alcohol use disorder (lines 1317–1321 of the Report).
In this context, Dr D recommended that the parents continue family therapy (to assist them with communication), that the mother continue individual psychological therapy (to support her and assist her to manage the children’s needs) and that the father receive individual psychological assistance (with specific focus on alcohol reduction and goal setting, and general parenting assistance/coaching) (lines 1241–1250 of the Report). She further recommended that the father be required to complete the parenting courses required by the November 2021 orders, that both parents attend upon the children’s treating practitioners to provide input and receive advice, and that the father reduce his alcohol consumption whereby he has a consistent period of six months of CDT test results within the normal range (with overnight time to be suspended if this is not adhered to). She suggested that the father’s time with the children could be extended if the above recommendations were complied with (lines 1323–1341 of the Report).
Dr D’s cross-examination
Dr D was cross-examined on 31 January 2024 via Microsoft Teams. She was primarily asked questions relating to the father’s alcohol consumption, her recommendations regarding CDT testing and any consequences arising from non-compliance or CDT test results above the reference range.
Dr D explained that she formed the view that the father has an alcohol use disorder based on multiple sources of information including interviews, previous CDT test results and subpoenaed documents, as well as reference to criteria in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders). She said in broad terms, this disorder encompasses “patterns of maladaptive drinking which cause disruptions to social, occupational, parenting or legal functioning”, which includes characteristics of the father’s drinking patterns, for example, not drinking every day but nevertheless engaging in dangerous forms of binge drinking. A person with this disorder will continue this pattern of drinking despite very negative consequences (e.g., physical, relational, financial). It was her view that the father did not have a daily dependence on alcohol, but he was unable to reduce his binge drinking in circumstances where there was great motivation to do so. She said she was unsure why the father’s psychologist, Mr H, disputed this diagnosis, but explained this could be for several reasons including the father not drinking to the same level at the time he saw Mr H, the accuracy of self-reporting, or the father downplaying and minimising the effects alcohol has had on him. She also conceded that another possibility was that she was wrong about the diagnosis. In written submissions filed 12 February 2024, counsel for the father argued that it is the fault of his previous lawyers that he did not obtain a report from Mr H regarding the disputed diagnosis of alcohol use disorder.
Dr D agreed with the mother’s counsel that the father’s CDT test results from February 2023 and September 2023 (paragraph 75 of the mother’s affidavit filed 19 December 2023) suggest that his alcohol consumption has not reduced since May 2022. She further agreed that it was concerning that the father told Mr H that he does not think he has a drinking problem, that he minimised his alcohol consumption, that he gave Mr H false information by telling him he was only assessed by her for 15 minutes, and that the reliability of the information provided to Mr H is concerning given the Report was not provided to him.
Dr D explained that while she had some concern about the father being raised in a family where there was a drinking culture and his father being a “heavier drinker than average”, another important factor is the framework or social acceptance of drinking levels within one’s own social cohort. She described the father’s social cohort as normalising binge drinking and exhibiting “boys will be boys” stereotypical Australian male drinking culture patterns and suggested that if someone is drinking at a dangerous level and that is normalised by their social group, then when professionals such as herself or GPs point out that this is unhealthy behaviour, this is discordant with their social group. Since individuals reference their behaviour off the people they socialise with the most, this behaviour is perpetuated by their social group, which is one of the most challenging aspects of treatment. Another level of difficulty was the father’s engagement with work clients involving high levels of drinking. She agreed that all the groups the father engages with involve the normalisation of high alcohol consumption, which is of concern.
Dr D agreed with the mother’s counsel that if the Court finds that the father has or does consume alcohol when caring for the children (and the Court will make this finding), it is concerning because there is a risk with his pattern of binge drinking that he may become intoxicated, as he has poor judgment with limiting alcohol consumption and he is more vulnerable to excessive amounts of drinking when he begins to drink. She reiterated her view that he has a problem with moderating his alcohol intake even when there are dire consequences, and she has concerns about his ability to stop at one drink (e.g., on social occasions). She said that based on his history, “the risk of relapse is ever present”.
Dr D agreed that, on the information before her and the concerns outlined above, a period of CDT testing for a period longer than six months would be appropriate. However, she was cautious about this period extending for years, indicating that it may “inflame” the father’s resentment towards the mother as she will become “the enforcer” and the person responsible for monitoring these results. Dr D suggested this dynamic between the parents could become a secondary risk factor to the children if they are exposed to this kind of conflict e.g., if the father becomes so resentful of the mother and subtly denigrates her. She suggested that this issue could be ameliorated by a neutral adult, such as a GP, being aware of the orders for, and practicalities of, CDT testing compliance.
Regarding the consequences of the father producing a CDT test result above the reference range, Dr D recommended that any change (e.g., a reduction in time or suspension of overnight time) be maintained for a period of six months before it changes again, given X’s sensitivity to minor changes and the amount of time he takes to adapt and cope with change. When prompted by the Independent Children’s Lawyer, Dr D elaborated by suggesting that if the children resume time with the father after that six-month period and he produces another CDT test result above the reference range, then she would feel more comfortable if there was a protective mechanism in which there is a more permanent position where the children cease having overnight time with the father. When asked by the Independent Children’s Lawyer if this should last until the children reach the age of 18, she said it should, at least for X, as he requires consistency and predictability, especially as he his starting mainstream school and coming into adolescence.
When asked by the Court whether the children would still be safe spending day-time with the father if he produces a CDT test result above the reference range, Dr D explained that they are not entirely safe, but that night-time comes with its own risks because it poses a higher set of demands, supervision and attentiveness (especially for X, who would be tired and lack impulse control). She opined that if the father was still binge drinking, even only at times when he did not have the care of the children, this would impact his parenting capacity as it would potentially result in impatience, fatigue, low-tolerance, and lack of impulse control. This is not conducive to the level of vigilance, attentiveness and parental control the children need to “prevent incidents and ensure they are happy and healthy”, and could lead to “blow-ups” between the father and the children e.g., when they are misbehaving or the girls are complaining about X.
When asked by the Independent Children’s Lawyer whether the father is prioritising his needs over those of the children in relation to his alcohol use, she stated that he has been unable to do the simple things needed to curtail his social and binge drinking, and unable to put the children’s needs before addressing this problem. She agreed that the quintessential issue appears to be that there is a problem with the father’s insight about alcohol and its consequences. She said that “the ball is in the father’s court about the degree to which he’s able to modify his behaviour so that the children have the benefit of consistency”.
The Court accepts the evidence of Dr D. There was really no contention that the Court would do otherwise.
Parental responsibility
The mother proposes that she have sole parental responsibility for the children, with provisions to consult the father. The father and the Independent Children’s Lawyer both propose that the mother have sole parental responsibility for the children in relation to medical, education and NDIS planning (with provisions to consult the father), and that the parties otherwise have equal shared parental responsibility for all remaining long-term decisions.
In her written submissions filed 6 February 2024, the mother outlines several matters relevant to the issue of parental responsibility. During their marriage the parents did not form a cohesive partnership in the decision-making and responsibilities for the care of the children, and long-term decisions made prior to separation (e.g., X’s Distance Education enrolment in late 2020) were fraught with conflict. The mother attended most of X’s appointments and was engaged almost exclusively in the decision making in that area. She asserts that the father was away from the home for extensive periods of time due to work commitments and social engagements. She submits that the father has been unsupportive of X's diagnosis and has failed to recognise the severity of X’s conditions or effectively engage with his treating team. He has been unable to deal with his alcohol use to prioritise the children and has taken a passive decision-making role. The parents have not been able to settle into a cooperative coparenting relationship after separation, and during cross-examination the mother described their communication as “very difficult”, that a lot of her communication “goes unanswered” and that she tries to engage as little as possible. As it turns out, all of these contentions are supported by the evidence.
The mother acknowledges that the father has conceded important and practical features of parental responsibility, but nevertheless argues that he should be excluded entirely. She submits that the dispute and distrust between them is too great, and X’s (and also Y’s) conditions may see the need for long-term decision making falling outside the specific matters conceded by the father.
She refers to the father’s alcohol misuse and its impact on his parenting capacity and ability to meet the children’s needs. The incident on a weekend in September 2023 is illustrative of this, when the father left the children with a friend and X became distressed (although the Court notes there is a dispute about the facts of this incident) and the father did not give any information to the mother upon returning the children, insofar as it related to X’s anxious response.
The mother submits that the father’s approach to completing parenting courses required by orders made on 25 November 2021 – taking 18 months to complete them and stating to Dr D that it was “unfair” he had to undertake these courses before time with the children was extended – indicates a lack of insight into the importance and benefit of those courses to the children and his inability to prioritise the children’s needs. The Court accepts that it is plausible that the father was delayed in completing his required parenting courses due to difficulties with enrolment, although acknowledges that no evidence was produced in this regard.
She asserts that the father’s unwillingness to accede to her requests to change the children’s weekend time with him from Friday to Monday, to Thursday to Sunday, as well as his persistence in seeking an order to be able to consume four standard drinks per day while he is caring for the children, until the third day of the hearing, was irresponsible and demonstrates his compromised decision-making.
The mother questions the father’s ability to participate in decision-making regarding the children in good faith, as he has been untruthful in a number of important aspects of his evidence, including being dishonest with Mr H about the amount of time he was assessed by Dr D, and being evasive when cross-examined about whether he provided Mr H with a copy of the Report.
The mother finally refers to the father’s response that the proposed restrictions on alcohol consumption were too “onerous” and suggests his change of position on the third day of the hearing was opportunistic to remedy shortcoming in his evidence, rather than being consistent with gaining insight.
In his written submissions filed 12 February 2024, the father (unhelpfully) did not directly address the issue of parental responsibility, other than stating that if the mother has sole parental responsibility, she may change the children’s surnames or do something that should be the decision of both parties.
He addresses the incident of the weekend in September 2023 by conceding he should have informed the mother that “[X] had a sleepless night”. The Court found the father to be evasive during cross-examination in his evidence about the events of the weekend of 29 September 2023. There is a dispute about what in fact occurred. The father had ample opportunity to present evidence regarding his version of events but failed to do so. The message he sent the mother on 2 October 2023 that he was “a few doors up” was misleading, likely to avoid the allegation that he was at a licenced premises, and he conceded that the message “I am not drinking at the moment” created the impression that he had been sober for a longer period of time rather than just that evening (paragraph 128 of the mother’s affidavit filed 19 December 2023). During cross-examination the father accepted that the events on the weekend in September 2023 constituted a “strange and new situation” as referred to by Dr D and that “in hindsight that was a bad decision”.
He accepts that X is “different”, that his diagnosis and consequent funding is to X’s advantage and suggests he has never criticised the therapies that X has received. He said he is happy to engage with therapists if he is given the opportunity and they are willing to consult with him (although the Court notes he has not been proactive in this regard in the past). In cross-examination the father agreed that he disputed X's diagnosis and that he has had little engagement with his treating practitioners despite having their contact information and being free to do so. He conceded that he thinks it is possible that X has been misdiagnosed in order to receive NDIS funding, and that the mother may have colluded in that due to the fact that it was based on her sole input. He stood by his statement at paragraph 92 of his affidavit filed 16 January 2021 that he does “not reject the diagnosis of the children” but is “concerned at them becoming public knowledge and affecting the children’s careers in the future”. The father agreed with counsel for the Independent Children’s Lawyer that he would be satisfied that X’s diagnosis was correct if there was a re-assessment based on his own input as well as the mother’s, but also conceded that he has not sought that out. When asked by the Court what the significance of this assessment and diagnosis is to him personally, the father said “I think having the correct diagnosis…being involved in the process, making sure that it is accurate. I like to sort of focus on ability rather than disability”. The father also does not accept Y's ADHD diagnosis because he is “in the dark”, but agreed that he had not sought out any information in relation to this.
He states that he did not initially agree to changing the children’s weekend time because it interfered with his work, but there is no difficulty now that X is attending mainstream school. The Court accepts that changing the children’s spend time arrangement to begin on a Thursday, while X was participating in Distance Education, would have been difficult for the father’s work schedule, but this does not explain why it took him until day three of the final hearing to amend his position when he already knew X was about to commence mainstream school.
In his written submissions filed 5 February 2024, counsel for the Independent Children’s Lawyer also did not directly address parental responsibility but traversed relevant issues. It was submitted that the fact the parents’ proposals were not far apart but they could still not “bridge the gap”, reflects the obstacles in their coparenting relationship to prioritise the needs of the children, and to put aside personal concerns and indulgences for the sake of the children’s safety, wellbeing and best interests.
He described the father as presenting as vague and obscure, displaying a lack of awareness of the gravitas and consequences of the parenting issues, as well as the effects of his stance regarding the severity of X's condition, the risk that his poor vigilance might pose to X, and how his relationship with alcohol has flow on effects to his parenting. In contrast, he describes the mother as having risen to the challenge of delivering high quality parenting and prioritising the children’s needs above her own. The Court agrees with this assessment.
He submitted that the father’s initial proposal to be allowed to drink four standard drinks per day, with injunctions and CDT testing being unnecessary, represented a fundamental impasse, especially in light of the Report. He asserts the father must be cast in poor stead for minimising his behaviour in relation to alcohol consumption, laying blame on the mother for many aspects of the proceedings, and trying to cast himself in a better light through engagement with a psychologist rather than undertaking therapeutic support focused on alcohol reduction and parenting assistance. He submits that the father had every opportunity to adjust his behaviour, embrace prohibitions as a way to give the Court comfort, and seek out support services to assist him navigate his relationship with alcohol and better understand the children’s needs, but he has chosen not to do so.
At the time of separation in February 2021, the parties had a relatively small pool of assets, being savings of $229,601, motor vehicles and household effects of nominal value.
Despite the likelihood that the father made a greater financial contribution towards the purchase of the Suburb U property, the Court finds that the parties made equal, albeit different, contributions during the marriage and thus contribution should be assessed as being equal. Assessment of contribution must be undertaken on a holistic basis. The submission made in the father’s case that contribution should be assessed at 70 per cent in his favour is not accepted. To have done so would have improperly elevated the financial contributions he made, over the diverse financial and non-financial contributions the mother made.
Contribution post-separation
The mother submits that her financial and non-financial contributions are greater than the husband’s contributions in the post-separation period.
The father asserts that following separation, the wife has “used up” matrimonial assets by spending approximately $245,000 for the purposes of her own maintenance, the maintenance of the children, and legal costs (though, if this were the case, no add-back was sought). He also submits that he has continued to pay spousal maintenance, child maintenance, general expenses for the children and health insurance premiums. He has also had the care of the children for “25%” of the time.
In the post-separation period, the parties have continued in the roles they adopted during the marriage. The mother has not engaged in employment but has had the primary care of the children, including attending to X’s needs, managing his NDIS funding, engaging with his treating professionals and therapies, and delivering his Distance Education. The father has continued to contribute financially through spousal maintenance (orders being made on 26 July 2021, 25 November 2021 and 3 August 2022 for this to occur), although this has now ceased.
There have been significant changes to the financial circumstances of each of the party’s post-separation.
The circumstances of the father’s current employment are controversial. He deposes to being employed by S Company between late 2018 and mid-2021. He then worked for another company before leaving that organisation voluntarily in late 2022. He then began employment with V Company in late 2022 and in early 2023 incorporated K Pty Ltd for the purpose of undertaking contract work for V Company. The father deposes that V Company terminated its contract with K Pty Ltd in late 2023 after they received a subpoena from the mother’s solicitors in relation to these proceedings. He states that he received his last payment in late 2023 and has received limited income since. He explains that the IT industry has “collapsed” and that there have been “widespread redundancies”, and thus it has been difficult to find work with similar renumeration as his previous jobs. He is now working as a driver.
The Court notes that the father failed to disclose the contract between V Company and K Pty Ltd, evidence of his termination, any evidence about the downturn of the IT industry, or evidence of his attempts to secure employment since late 2023.
It was open to the father to provide the above evidence, and he did not do so. However, he provides justifications for this. He maintains that he provided any necessary financial disclosure to his previous solicitors, who failed to send this on to the wife’s solicitors, or alternatively that he thought all relevant information was contained in subpoena material. He asserts that evidence regarding the downturn of the industry could not be obtained in any admissible form, as the wife filed her evidence late and his solicitors ceased to act. He submits that there is a lack of evidence regarding job applications because work in the IT industry is often secured through contacts rather than applications and interviews. The Court does not consider these to be convincing or valid excuses. For example, he did not even attempt to give evidence about jobs he applied for “through contacts”, despite his long association with the IT industry.
Post-separation, the mother received an inheritance amounting to $2,301,615 from the estate of her late uncle and godfather, Mr F (Exhibit A12). Probate was granted in mid-2022 and the distribution of the estate took place between mid-2022 and late 2023. The Suburb R property was originally $1,250,000, but now has an agreed value of $1,580,000. The father asserts that between late 2022 and the date of the hearing, the wife received $881,000, with $70,000 remaining in trust (Exhibit R3) and $100,000 still to be distributed to the mother. He explains that what now remains of the estate is $1,967,538.71, indicating that the mother has spent approximately $600,000 of the estate funds. He criticises the mother for not renting out the Suburb R property to obtain income. In cross-examination she said she could not lease the property because it does not have a kitchen, and said despite receiving approximately $800,000 from the estate, this could not be used to install a kitchen because it “came in tranches” and she did not know when she would get the next instalment of money. The Court accepts this explanation.
As the Court has ruled that the mother’s inheritance forms part of a separate pool, to which the father has made no contribution, the estate transactions referred to above are irrelevant. Based on the totality of the evidence, it is not possible to discern how the respective post-separation financial and non-financial contributions of both parties should be assessed other than equally.
Future needs
The mother concedes that if an asset-by-asset approach is taken by the Court, she could not argue for a further adjustment in her favour, given the respective positions the parties will find themselves in. The Court has so found.
The father concedes that if all the parties’ assets are to remain in one pool, no future needs adjustment is required. However, if the inheritance is placed in a separate pool, there should be an adjustment (although, unhelpfully, he does not specify a percentage).
The Court rejects this submission.
There is no evidence before the Court that suggests a significant and ongoing departure from the father’s historical ability to earn a high income. It is plausible that the father has chosen to pursue employment with lower renumeration than he has the capacity to earn for reasons other than the alleged downturn of the IT industry and widespread redundancies, for example, to secure a more favourable outcome in these proceedings. This conclusion is also based on the Court’s findings in relation to the father’s credit in circumstances where his responses during cross-examination, for both the parenting and property proceedings, were often evasive, unreliable, lacking in detail, glib and implausible.
The mother is currently the primary carer of the children, with minimal financial support from the father. Her future needs will be far greater than that of the father, having the ongoing primary care of the children, two of whom have greater needs. These needs are currently mostly being met from the use of her inheritance, rather than assistance from the father. Any proposal for an adjustment in the father’s favour for future needs is unfounded.
Approach to division of property
As outlined above, the Court adopts the mother’s three-pool analysis. This means that Pools 1 and 2 will, in the first instance, and notionally, be divided between the parties, and that the wife will retain the sole benefit of Pool 3.
As a practical matter of implementing such an alteration of property interests, the superannuation entitlements in Pool 2 will simply be equalised resulting in the total superannuation of $492,790.72 being divided equally, that is $246,395.36 each. As the wife already has $79,235.60, the superannuation split in her favour would be $167,159.76. The Court recognises that according to the minutes of order proposed by both parties, there was an agreed split in a much higher sum. The Court believes this was mistaken on the part of the father but, if it is the Court that is mistaken, it is a matter that can be easily corrected under the slip rule, if needed.
In relation to Pool 1, a very small pool, each party will retain the assets and liabilities in their own name save for the E Bank account in the mother’s name (item 15 of the balance sheet) which the parties agree the father should receive as part of his share. Notwithstanding that this is not only the parties’ apparent joint intention, but makes obvious sense, it becomes impossible to achieve a 50:50 split of this pool without recourse to other assets.
The following table demonstrates the above issue. It allocates the assets and liabilities to each party as discussed above:
POOL 1 – MATRIMONIAL POOL Applicant Respondent Description Value Description Value ASSETS 1 Westpac Account …95 $0 Westpac Account …95 $0 2 J Bank Account …70 $0 J Bank Account …70 $0 3 NAB …92 NK4 NAB …55 NK5 Motor Vehicle 1 $46,500 6 Household contents Nil 7 K Pty Ltd Services NK 8 Unpaid L Family Services reimbursement to E Bank …00 – add back $9,900 9 Westpac Account …88 $0 10 Westpac Account …40 $0 11 J Bank Account …50 (account for X's NDIS Funding) $0 12 M Bank Account …09 $0 13 M Bank Account …40 $0 14 M Bank Account …94 $0 15 E Bank …00 $36,675 16 Westpac Account $637 17 NAB Account $2,010 18 Household contents $5,000 Total $7,647 $93,075 LIAIBILITES 19 School fees $3,798 20 N Financial Services $51,000 21 K Pty Ltd, GST and Tax $0 22 Legal Fees as per costs notice $0 23 Westpac Credit Card $0 24 Loan from Ms O and Mr P $0 Total $3,798 $51,000 NET ASSETS $3,849 $42,075
POOL 2 – SUPERANNUATION POOL Applicant Respondent Name of fund Type of interest Value Name of fund Type of interest Value 25 Super Fund 3 Accumulation $79,235.60 26 Super Fund 1 Accumulation $20,653 27 Super Fund 2 $167,159.76 Super Fund 2 Accumulation $225,742.24 Total $246,395.36 $246,395.36
POOL 3 – INHERITANCE POOL Applicant Respondent Description Value Description Value 28 Q Street, Suburb R, NSW $1,580,000 29 Funds in trust of DDCS Lawyers $209,265.28 30 Car $15,000 31 Westpac Account …55 $113,273.47 Total $1,917,538.75 $0
In relation to Pool 1, in order to achieve a 50:50 split, namely $22,962.50 each, the father would need to pay the mother $19,113.50. On the evidence, the only source for this payment would be the father’s superannuation. However, for reasons that will be discussed below in the context of whether this is a just and equitable alteration of property interests, the Court will decline to order this further payment. Pool 1 will be divided in accordance with the table in the preceding paragraph.
As foreshadowed, the Court must consider whether the alteration of property interests contemplated by these reasons, when implemented, is just and equitable to both parties. There were no specific submissions about this in the father’s case. In real terms the father emerges from this relationship with minimal assets, but with liabilities that include, for example, legal fees. He would contend that the mother emerges from the relationship with substantial assets, indeed in a superior financial position to his. In one sense, that is correct, but it is only because of the inheritance received by the mother in circumstances where the father has made no contribution, and it was received after separation. Whilst the father might perceive this as an inequity, no adjustment was made for the future needs of the mother in circumstances where, the Court contends, an adjustment would otherwise have been made. An unusual feature of this case is that the non-superannuation pool, Pool 1, is so small in value. In order to do justice and equity in the unique circumstances of this case, the Court will not require the father to make the payment equalising Pool 1, out of his superannuation or otherwise. Each will retain what they have, as set out in the table above.
In the father’s counsel’s submissions, there was criticism about the alleged disparity in the benefits received by the father and mother from the small amount of capital they had from the sale proceeds of the former family home. The substance of the submission was that most of it went to child support and spousal maintenance. The inference was that this was unfair to the father because he contributed to the capital and earned the income that led to the maintenance and child support payments but received no benefit. The Court does not accept this criticism. The father was under a duty, both legally and morally, to support the mother and the children. That capital was eroded, and income applied, for this purpose generates no inequity. It must also be borne in mind that the Court does not accept that the father is fully utilising his earning capacity.
Having regard to all the evidence, the Court is satisfied that the orders for alteration of property interests identified above are just and equitable in the circumstances.
CHILD SUPPORT DEPARTURE APPLICATION
The mother seeks that there be a departure from the administrative assessment of child support payable by the father for the period 1 July 2022 to 1 December 2032, and that the annual rate of child support be fixed at $20,000 per child per annum, to be apportioned equally as between the children, and increased with the consumer price index for New South Wales on an annual basis.
An application may be brought pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”) by a carer entitled to child support under special circumstances. Section 116 provides as follows:
Application for order under Division
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
…
Section 117 of the Assessment Act provides matters to which a Court must be satisfied before making a child support departure order:
117 Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
…
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
…
The mother submits the Court will be satisfied that the “special circumstances” in s 117(2) are met due to: her inability to engage in paid employment (having regard to her obligations to care for the children and attend to X’s special needs); an administrative assessment likely resulting in an unjust and inequitable determination of the level of financial support to be provided by the father due to his capacity for gainful employment and failure to explain or disclose his dramatically reduced taxable income; and the recent reduction in X's NDIS package and upcoming review of this decision, as well as the continuing support he requires.
The mother further submits that a departure order would be just and equitable and otherwise proper under s 117(1)(b)(ii) due to: X’s significant needs; the unlikelihood of the father experiencing hardship due to his capacity for gainful employment; the hardship that the children would suffer if the order is not granted (as the level of support X receives has a flow-on-effect to his siblings); and the hardship the mother will suffer if a departure order is not made, given the additional burden of financial support will be carried solely by her having regard to the father’s unwillingness to accept the severity of X’s diagnoses.
The father submits that if his income reaches previous levels, it will reflect in his child support payments, although he is not capable of earning the same high income as he previously has. He submits that this is a “last minute application” by the mother, that making a departure order would be inappropriate and the application should be dismissed.
Exhibits A13–A37 comprise a collection of documents relating to child support assessments. The most recent assessment (Exhibit A33) for the period 1 July 2024 to 31 October 2024 amounts to $13,833 to be paid by the father annually, based on his 2023 taxable income of $105,739. The assessment estimates the costs of the children to be $9,224 per child.
The Court has considered the mother’s child support departure application but concludes that the application should be dismissed. Whilst the Court has expressed its reservations about the father’s current employment and earning capacity, no actual finding is possible about his actual earning capacity or when he will find work. The existing processes for administrative assessment are, in the opinion of this Court, much better able to accommodate the complexity, and ebb and flow, of the financial circumstances of this family, especially the father. The Court concludes that: no special circumstances exist for the purposes of s 116(1)(b)(ii); it is not just and equitable as regards the liable parent, in the circumstances of this case, to depart from the existing administrative assessment of child support for the purposes of s 117(1)(b)(ii); and it is not satisfied that the current assessment is unjust and inequitable for the purposes of s 111(2)(c).
Orders
Each party will retain the assets and liabilities in their own name in Pool 1, save for the funds in the E Bank account in the mother’s name, which will be paid to the father. The parties will receive an equal share of the superannuation in Pool 2, with a superannuation splitting order being made in favour of the mother in the amount of $167,159.76 from the father’s superannuation fund, Superannuation Fund 2. The mother will retain the entirety of Pool 3, amounting to $1,917,538.75.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 22 March 2024
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