Wagner and Baier (No.2)
[2009] FMCAfam 959
•17 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAGNER & BAIER (No.2) | [2009] FMCAfam 959 |
| FAMILY LAW – Parenting – appropriate interim arrangements for child aged 21 months – maintenance – application by mother for interim de facto spouse maintenance – procedural – application by father for an order that the mother submit to a psychiatric examination. |
| Family Law Act 1975, ss.65DAA, 90RA, 90SB, 90SD,90SE,90SF |
| DJM & JLM (1998) FLC92-816 |
| Applicant: | MS WAGNER |
| Respondent: | MR BAIER |
| File Number: | DNC 216 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 26 August 2009 |
| Date of Last Submission: | 26 August 2009 |
| Delivered at: | Darwin |
| Delivered on: | 17 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Landers & Rogers |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
ORDERS
IT IS ORDERED UNTIL FURTHER ORDER
That the father spend time with [X] born in 2007:
(i)from 4.30pm until 7.30pm each Wednesday and Friday;
(ii)from 10.00am on Sunday until 7.30pm on Sunday on 20 & 27 September 2009;
(iii)from 10.00am on Sunday until 7.30am on Monday on 4/5, 11/12, 18/19 and 25/26 October 2009;
(iv)
from 4.30pm on Saturday until 7.30am on Monday on
31 October-2 November, 7-9 November, 14-16 November and 21-23 November 2009;
(v)from 4.30pm on Friday until 7.30am on Monday each alternate weekend commencing on 4 December 2009;
(vi)from 4.30pm until 7.30pm on Saturday each alternate weekend commencing on 28 November 2009;
(vii)at such additional or alternate times as may be agreed between the parties.
That changeover shall take place at McDonald’s [C] unless otherwise agreed between the parties.
That the father shall be responsible for payment of the mortgage secured over the [L] property in the amount of $105.00 week.
That the parties shall each pay one half of the water and sewerage and council rates for the [L] property as these fall due.
That the mother’s application in a case filed on 7 August 2009 is otherwise dismissed.
That the father’s application in a case filed on 26 August 2009 is dismissed.
AND IT IS ORDERED
That pursuant to section 26 of the Federal Magistrates Act 1999 the parties and their legal representatives attend a conciliation conference on 5 November 2009 at 11.00a.m with a Registrar of the court and that both parties produce to the other fourteen (14) days prior to the conciliation conference documents as prescribed in Annexure A of this order.
That pursuant to section 13C of the Family Law Act each party forthwith enrol in and complete a Parenting Orders Program at Resolve at times and dates to be advised to the parties, with the parties to attend at the organisation at such times as requested by the organisation.
That the matter is fixed for final hearing on 2, 3 and 4 December 2009 at 10.00am NOTING that three days hearing time has been allocated and will not be exceeded without leave of the court.
That the applicant pay the hearing fee of THREE HUNDRED AND NINETY DOLLARS ($390.00) or file a remission certificate in respect thereof by close of Registry filing on 21 November 2009.
That each party file and serve any amended application or response and any affidavits on which they intend to rely at the hearing by close of Registry filing on 21 November 2009.
That each party file an Outline of Case document by close of Registry filing on 30 November 2009 to include the following:-
(a)a list of documents relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (s.60CC factors);
(d)a list of contentions with respect to considerations relevant to determining appropriate parenting orders, outside of s.60CC (if any);
(e)whether presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;
(f)contentions relevant to considerations of equal and substantial parenting time (s.65DAA), if relevant;
(g)contentions relevant to any other relevant statutory considerations (including the relevant section number, eg ss.60CG, 61F, 65DAB, etc);
(h)actual orders sought;
(i)a list of assets and liabilities;
(j)the proposed percentage division on the basis of contributions and the contentions in support; and
(k)the proposed percentage adjustment for section 90SF(3) factors and the contentions in support.
That the parties have liberty to apply within seven days in relation to orders (7) and (8).
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Baier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 216 of 2009
| MS WAGNER |
Applicant
And
| MR BAIER |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother and father separated in Darwin on 2 March 2009.
On 8 March the mother unilaterally relocated to Melbourne with [X], the parties’ only child, who was born in 2007.
The father filed an application seeking [X]’s return to Darwin. The mother filed a response in which she sought orders permitting her to live in Melbourne with [X].
At the interim hearing on 29 June 2009 the mother’s counsel informed the court that the mother intended to remain in Melbourne and that if the court ordered that [X] must return to Darwin pending a final hearing then [X] could live with the father.
On 3 July 2009 interim orders were made that [X] live with the father.
The father travelled to Melbourne to collect [X] but the mother refused to hand [X] over. She filed a Notice of Appeal and also an application for a stay of the interim orders.
It was the mother’s case that she had not instructed her counsel to inform the court that she would not return to Darwin if [X] was required to return. The mother said that she was willing to return to Darwin and parent [X] in Darwin pending a final hearing.
The mother’s application for a stay was dismissed, but the possibility of the mother bringing a fresh interim application based on changed circumstances was flagged.
On 7 August 2009 the mother filed an application in a case seeking alternative interim orders. She proposed that pending a final hearing [X] live with her (in Darwin) and spend defined time with the father. The mother also sought orders for sole occupancy of a jointly owned property in [L] and orders that the father pay the mortgage insurance and outgoings for the property, that a motor vehicle be returned to her and that the father pay her $400.00 per week maintenance.
The mother’s application came before the court on 14 August 2009 and on that day orders were made by consent that [X] live with the mother, that the mother return to Darwin with [X] by no later than 22 August 2009, and that upon her return and until a further interim hearing could be conducted the father spend time with [X] on several occasions each week during the day.
Orders were also made by consent that the mother have sole occupancy of the [L] property and that the father deliver the motor vehicle to her.
The matter was adjourned to 26 August 2009 for an interim hearing in respect of the following issues:
a)the father’s time with [X] pending a final hearing; and
b)the outstanding interim financial matters.
On 24 August 2009 the father filed a response to the mother’s application in a case. He proposed that [X] live with him four nights each week and with the mother for three. He opposed the mother’s application for de facto spouse maintenance and proposed that payment of the mortgage insurance and outgoings for [L] be shared. He also filed an application in a case in which he sought an order that the mother submit to a psychiatric examination.
The competing proposals about the parenting arrangements for [X]
The mother’s proposal on 26 August 2009 differed from that contained in her application in a case. She proposed that pending a final hearing [X] spend time with the father:
i)from 4.30pm until 7.30pm each Wednesday and Friday;
and in addition:
ii)for the first four weeks from 10.00am until 7.30pm on Sunday;
iii)for the following four weeks from 10.00am on Sunday until 7.30am on Monday;
iv)for the following four weeks from 4.30pm Saturday until 7.30am on Monday;
v)thereafter each alternate week from 4.30pm Friday until 7.30am Monday and in the other week from 4.30pm until 7.30pm on Saturday;
vi)for three hours on the child’s birthday; and
vii)at such additional or alternate times as the parties may agree.
It was the mother’s case that at [X]’s age she needed to spend the majority of her time with her primary carer (the mother) and frequent shorter periods of time with the other parent.
It was further the mother’s case that [X] was unsettled and clingy after she spent overnight time with the father in Melbourne in July 2009, and that for this reason overnight time should be introduced slowly and then extended gradually.
The father proposed that [X] live with him in each week:
i)from 9.00am on Sunday until 7.30am on Tuesday;
ii)from 4.30pm on Wednesday until 4.30pm on Thursday;
iii)from 5.00pm on Friday until 9.00am on Saturday.
The father effectively sought equal time. His proposal would see [X] spending 3 days/4 nights each week with him and 4 days/3 nights with her mother. It would involve [X] alternating between her parents in a 2-1-1-1-1-1 pattern as to the nights.
The father’s case was that he was a competent parent who had always been involved in [X]’s care and that he was perfectly capable of meeting her needs during the times proposed.
The father said that overnight time in Melbourne had gone well. He said that if orders were made as he proposed he would cease working on Mondays, and place [X] in day care one day each week.
It was the father’s case that the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and himself was suspect and that to guard against the father/daughter relationship being undermined the court should give the father more rather than less time with [X].
Discussion
In my decision on the stay application, I expressed the hope that once the mother returned to Darwin the parties might be able to reach some agreement about interim parenting arrangements. Regrettably this has not happened. The relationship between the parties has continued to deteriorate rather than show any signs of improvement.
Each party filed a further lengthy affidavit in August 2009. A good deal of the material in those affidavits is not relevant and seems more designed to wound the other party than to assist the court to make a decision about appropriate future parenting arrangements for [X]. I hope that each party will be more discriminating when they prepare affidavits for the final hearing.
The parties remain in dispute about many matters relevant to [X]’s well-being, and I cannot make findings about most of the matters in dispute. Some of the matters in dispute include:
·how [X] coped with the changeover between her parents in Melbourne in July 2009;
·whether [X] was particularly disturbed and unsettled after her overnight visits with her father;
·whether the mother has a dismissive attitude toward the father and a lack of acceptance that he has a role to play in [X]’s life equal to her own;
·whether the mother lacks the capacity to facilitate and encourage a close and continuing relationship between [X] and the father.
I also cannot make any findings about the allegations each party now makes about the other’s treatment of [X] when she was younger. I do note however that each party is content for the other to spend substantial time with [X], and that neither sought any orders directed to controlling the other’s behaviour toward [X].
In interim proceedings where findings cannot be made about matters in dispute, matters which are not in dispute assume significance. One significant matter which really cannot be disputed is that the mother has been [X]’s primary carer to date.
I accept that the father was involved in [X]’s care prior to separation. I accept that the separation between [X] and the father between 8 March 2009 and 22 August 2009 was not of his choosing. However the mother took maternity leave in November 2007 after [X]’s birth. In July 2008 she returned to part time work two days a week and otherwise she continued to care for [X] during the day. [X] was in the mother’s sole care in Melbourne between 8 March 2009 and 22 August 2009.
The other significant matter which is only too apparent from the material before the court is that the parents currently have a poor relationship, indeed are hostile to each other, are that they have a limited ability to communicate. Each parent sought an order restricting the right of the other to contact them and each sought an order that the other party be restrained from coming within 100 metres of their home.
The father’s proposal for interim parenting arrangements was effectively a proposal that [X] spend equal time with each of her parents. As I have made an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether an order for equal time would be in [X]’s best interests and reasonably practicable.
In my view equal time would not be in [X]’s best interests.
The fact that the parents are unable to communicate easily would make me cautious about ordering equal time even if [X] were older.
The 2-1-1-1-1-1 pattern of nights proposed by the father, no doubt in an effort to achieve equal time while also being sensitive to concerns about [X] being separated from her mother for a lengthy period at her present age, has the potential to be highly unsettling for [X].
The optimum arrangement for a child of [X]’s age is to spend the majority of her time with her primary carer and frequent shorter periods of time with the other parent. The mother has been [X]’s primary carer to date. The interim orders proposed by the mother are the orders likely to be in [X]’s best interests pending a final hearing.
The father’s counsel submitted that even if the court was otherwise inclined to make the interim parenting orders proposed by the mother, overnight time should commence immediately rather than after [X] had spent a whole day with him on four occasions.
I have no expert advice to guide me on this precise issue. By the time this interim decision is handed down [X] will have spent several full days with the father on the weekends and I intend to order that overnight time commence after two further periods of time during the day on Sunday.
As to changeovers, on 14 August 2009 I made an order by consent that they take place at McDonald’s [C] or another public place agreed between the parties in writing.
On about 21 August 2009 the parties agreed that changeover should occur at [W] shops. This was at the instigation of the mother, who said that her motor vehicle needed to be repaired and that she could walk to [W] shops from her home whereas it was difficult for her to get to McDonalds at [C] without a motor vehicle.
In his response filed on 24 August 2009, the father sought an order that changeover take place at CatholicCareNT, a dedicated changeover centre at Berrimah.
The issue of the changeover venue was not argued on 26 August 2009.
In her 26 August 2009 affidavit the mother said that while [W] shops had the advantage of being within walking distance of her home, the venue was not well lit at night, and was therefore not an ideal location for a changeover at 7.30pm.
Some of the changeovers pursuant to the orders I intend to make will take place at 7.30am and 7.30pm. It is unlikely that the CatholicCareNT will be open at these times.
It is also unlikely that the mother will allow a situation where she does not have the use of a motor vehicle to continue for any length of time. McDonalds at [C] is closer to the mother’s home than CatholicareNT at Berrimah and will be open at 7.30am and 7.30pm. I intend to order that changeover occur at McDonalds [C] unless otherwise agreed between the parties.
The mother’s application for interim maintenance
The mother and father were in a de facto relationship. Amendments to the Family Law Act which commenced on 1 March 2009 give this court power to make property and maintenance orders in respect of former de facto partners providing that certain requirements are satisfied.
Section 90SE(1) of the Family Law Act provides that:
“After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
Note 1: The geographical requirement in section 90SD must be satisfied.
Note 2: The court must be satisfied of at least one of the matters in section 90SB.”
The mother sought an order for interim maintenance for herself in the sum of $400.00 per week.
The requirements of s.90SD and s.90SB are satisfied in this case. Pursuant to s.90 (RA) (1) (b) of the Act the Northern Territory is a participating jurisdiction for the purposes of the amendments.
Section 90SD is satisfied because the father was ordinarily resident in the Northern Territory when the mother brought her application for maintenance, and both parties were ordinarily resident in the Northern Territory for at least one third of their de facto relationship.
Section 90SB is satisfied both because the parties were in a de facto relationship for two years (between January 2007 and 2 March 2009) and because there is a child of the de facto relationship.
Section 90SF of the Act provides as follows:
Matters to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first‑mentioned party is reasonably able to do so; and
(b) only if the second‑mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship, see section 90RB.
(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The mother’s capacity to support herself adequately
The mother is a [omitted] by occupation. After [X]’s birth in November 2007 she took maternity leave but in July 2008 she returned to work two days a week. [X] was placed in child care at ABC Learning Centre in Darwin while the mother was at work.
After the mother relocated to Melbourne she actively sought work and often worked two days each week doing casual [occupation omitted]. On one of those days her mother cared for [X] and on the Tuesday [X] was placed in child care.[1]
[1] Mother’s affidavit filed on 24 June 2009 paragraph’s 37a, 37b, 37e
The mother is presently in receipt of Centrelink benefits. It was her case that she did not intend to look for work now that she was back in Darwin. She said as follows:
“My prospects of returning to the workforce part time in Darwin are limited. While I have previously obtained permanent part-time work at [omitted], this position was offered to me as I was acquainted with the [staff member omitted]. There has been a change in management at the [workplace], and the [workplace] is no longer inclined to employ [occupation omitted] on a part-time basis. Emergency [omitted] work may be available but this involves last minute notification of the requirement to work, which presents difficulties with organising [X].
At this stage, I shall focus on settling [X] in to the home and a new routine following our return to Darwin. It takes time for her to become accustomed to changes to routine. At this stage, I plan to remain caring for her ahead of searching for work. I will search for a new play group and enrol [X] in swimming lessons to provide her with an opportunity to socialise.”
Pursuant to s.90SF(3)(l) of the Family Law Act one of the matters I am required to take into account when assessing an application for maintenance is the need to protect a party who wishes to continue that party’s role as a parent. However the mother has shown a consistent desire to work part time since July 2008. I am not convinced that if I refuse to make an order for maintenance the mother will be forced to return to the workforce when she would prefer not to do so.
I am also not convinced that part time [omitted] work would be unavailable to the mother if she looked for it. The mother had no difficulty obtaining part time [omitted] work in Melbourne when she returned there in March after an absence of several years. She worked part time in Darwin for eight months between July 2008 and separation and has the connections she made during that time to recommend her to other employers.
The mother claimed that she would not derive any meaningful financial benefit from working in Darwin given the costs of childcare. However the father gave the following evidence:
“Before…[Ms Wagner] went to Melbourne, she was working two days per week earning clear of tax $1200.47 per fortnight. The two-day per week child care costs from ABC Learning Centre was $158.03 and in respect of which we received a rebate from the Australian Government of about $63.00 per week.”[2]
[2] Father’s affidavit filed on 24 August 2009 paragraph 38.
The father further said that he had made inquiries at ABC Child Care Centre and that it would now cost the mother about $70.00 per day to have [X] in child care and she would receive a rebate of $38.00.
The father’s evidence was to the effect that if the mother worked two days per week the she would clear $536.00 per week.[3]
[3] Father’s affidavit filed 24 August 2009 paragraphs 38, 39
In her 26 August 2009 affidavit the mother did not dispute the father’s evidence about her earning capacity, although she disputed in some detail many other allegations made by the father.
In Part N of her financial statement filed on 7 August 2009 the mother estimated that her expenses if she lived in Darwin would be $952.00 per week.
The mother’s estimate of her expenses including the following:
Board/Rent 400.00 World Vision 12.00
The mother will not be paying any board or rent, because she has sole occupancy of the [L] property and continuing the World Vision payments it is not necessary for the mother’s self support. Deduction of these amounts would reduce the mother’s expenses to $540.00 per week.
The mother did not provide any explanation in her affidavit about why she would need to pay the following amounts per week:
Medical dental and optical (not including health insurance premiums) 20.00 Holidays (return air fare Melbourne) 20.00 House repairs 10.00 Chemist/pharmaceutical 15.00 Gardening/lawnmowing 10.00 Repairs (furnishing and appliances) 20.00
The amounts claimed for telephone ($100.00 per week) and electricity ($80.00 per week, half of which the mother attributed to [X]) and hairdressing and toiletries ($45.00 per week) seem very high and the mother did not provide any basis for these figures in her affidavit.
If the amounts in paragraph 60 are deducted completely the mother’s expenses are reduced to $445.00 per week and if the amounts allowed for telephone, electricity and hairdressing are reduced then the expenses are reduced even further, perhaps to well under $400.00 per week.
The mother has in addition fixed expenses of $155.00 per week as set out at part G.
It is impossible to make a precise finding about the amount reasonably necessary for the mother’s self support but it is difficult to see why it should exceed about $550.00 per week.
The mother is not only required to support herself, she is also required to support [X] and she claimed that [X]’s expenses were $335.00 per week. The father is paying $134.00 per week child support.
In the case of [X]’s expenses, again the amounts claimed for medical dental and optical and chemist are unexplained and the amount for hairdressing and toiletries of $35.00 per week is exorbitant. The amount of $30.00 claimed for child care needs to be taken out. However the mother’s expenses in relation to [X] are unlikely to be less than $134.00 per week in their turn.
While it is impossible to be precise, it is likely that the mother will have a shortfall between what she can earn working part time and the amount required to support herself adequately, perhaps roughly in the vicinity of $150.00 per week.
The father earns $63,232.00 per annum or $1,216.00 per week. After fixed expenses of tax, mortgage repayment, rates, rent, motor vehicle insurance and registration and child support are deducted he has $547.00 per week remaining.
It was the father’s case that his average weekly expenses were $552.00, leaving him with no capacity to pay maintenance.
The mother’s counsel mounted three attacks on this claim. Firstly, he submitted that earlier this year the father proposed borrowing $270,000.00 to buy the mother out of the [L] property, and that this would have required the father to make loan repayments of about $370.00 per week (compared to the $55.00 per week at present). The mother’s counsel submitted that I could infer that the father had a capacity to pay maintenance of $370.00 per week because he must consider that he would have some way to pay the $370.00.
I do not accept this argument. It is based on speculation. The father has not yet borrowed money to pay to the mother and there is no evidence about what his mortgage payments will be if he does so. There are ways in which the father could meet higher mortgage payments other than just relying on his income, such as renting out the home and living elsewhere or taking in a boarder.
The mother’s counsel next argued that the father had disclosed that he had about $500.00 per week left after taking into account essential expenditure of tax, mortgage repayments, motor vehicle expenses, rent and child support and that this should be split between the parties, so that the father retained $250.00 and the mother received $250.00.
It would be incorrect to approach the matter in this way.
Section 90SF(1)(a) provides that a party to a de facto relationship is required to maintain the other party only to the extent that the first mentioned party is reasonably able to do so. Pursuant to s.90SF(3)(d) one of the matters I am required to take into account when considering whether to make an order for maintenance is the commitments that are necessary to enable each party to support himself or herself.
In DJM & JLM [4] the Full Court of the Family Court referred with approval to the following observations by Ellis J in the case of Curnow (unreported) 28.4.1997):
‘In my judgment, a party is only liable to maintain the other party to the extent that the first-mentioned party is reasonably able to do so. In determining whether a party is reasonably able to support or contribute to the support of another party, one should have regard to the income of the first-mentioned party and then the unavoidable, non-discretionary expenses of that party, including his or her reasonable living expenses. After that exercise, one can consider the amount, if any, from which the first party may be able to contribute to the maintenance of the other party’.”
[4] DJM & JLM (1998) FLC92-816
The mother’s counsel thirdly argued that some of the father’s expenses should be disallowed, namely motor vehicle maintenance ($50.00) child minding ($37.00) books and magazines ($5.00) gifts for others ($20.00) and other necessary commitments ($20.00). He argued that once these expenses were disallowed the father had the capacity to pay $127.00 per week.
There is a certain inequity in this approach as the mother has allowed herself $20.00 per week for vehicle maintenance, $10.00 per week for book and magazines and $5.00 per week for gifts for others. However the father will not need to pay and he then has a small capacity to pay maintenance and child minding.
The one clear expense the father claimed and which he will not have as a result of the parenting orders I make is $37.00 per week for child care, the “other necessary commitments is not explained and making gifts to others is not necessary for the father’s self support. I am satisfied that he could pay maintenance in the amount of about $77.00 per week if required.
Conclusion about maintenance
In my view it is not unreasonable to expect the mother to work part time two days a week as she has done in the past, and if she does this she will have an ability to make a considerable contribution to her own self support.
The father is not a particularly high income earner. By paring his expenses to the bone it can be made to appear that he has some capacity to pay maintenance but this is not a case where there is clearly a considerable excess of income available to the father from which maintenance could be paid.
The father is paying a reasonable amount of child support for his daughter. He has agreed to the mother having sole occupancy of the former matrimonial home pending a final hearing. If the mother continues to pay $50.00 per week toward the mortgage and to make a partial contribution to the rates she is receiving accommodation in exchange for a modest outlay.
The father does have a capacity to pay some maintenance if it is required however and the mother does have an unmet need. None of the figures are precise and doing the best I can I intend to order that the father pay the whole of the [L] mortgage payment rather than paying any money direct to the mother. This is will relieve the mother of an expense and will require the father to pay an additional amount of $50.00 per week for a limited period of time pending a final hearing.
For reasons to be given later I intend to order that the parties each pay half of the rates instalments and house insurance payments as they fall due.
The father’s application that the mother be psychiatrically assessed
The father applied for an order that the mother be psychiatrically assessed. The father’s counsel said that the assessment would cost $1,650.00 and that the father was willing to pay for the assessment, an offer which sat somewhat oddly with his claim that he could not afford to pay maintenance.
The mother opposed an order that she be subjected to a psychiatric assessment unnecessarily, although her counsel said that she was willing to co-operate in the process if ordered to do so.
The mother has no history of involvement with mental health services. The father’s application was based on his layman’s opinion that the mother’s behaviour during and after the relationship, together with entries in her personal diary, suggested that she was suffering from narcissistic personality disorder or anti-social personality disorder.
The father’s use of the mother’s personal diary is an action capable of causing long lasting damage to the relationship between the parties. Only time will tell if the father was justified in making use of the diary. The entries on which the father placed weight suggest that the mother has issues about her relationship with her parents and about her sibling relationships, but there is nothing in the entries to immediately suggest that the mother needs to be examined by a psychiatrist.
It would be dangerous for me to assume that mother’s actions post separation in unilaterally relocating [X], in initially proposing that the father have supervised time only and in proposing sole parental responsibility and in being resistant to [X] returning to Darwin were signs that the mother is suffering from a mental illness.
I cannot place any weight on the father’s opinion about psychiatric disorders from which the mother may be suffering.
I do not intend to order that the mother submit to a psychiatric assessment. A Family Report has been ordered and if the family report writer considers that a psychiatric assessment of one or both of the parties would assist, the matter can be reconsidered after the release of the family report.
Other matters
The issue of payment of the rates and insurance for [L] was not specifically addressed during submissions and no evidence was given about it in the affidavits. The mother in her financial statement said that she was paying $50.00 per week for the mortgage, $50.00 per week for the rates and $40.00 per week for the house insurance. The father said that he was paying $55.00 per week for the mortgage and $40.00 per week for the rates.
Neither party provided any information about how much the rates were each year, or what the insurance premiums were, or whether the insurance was paid by weekly or fortnightly deductions or in a lump sum.
I relied on the information in the financial statements in assessing the mother’s claim for maintenance and the father’s capacity to pay and it seems reasonable to ensure that the parties continue to make the rates and they claimed in their Financial Statements to be making pending a final hearing. I intend to make orders in that regard. There is insufficient information about the insurance and I do not intend to make an order about that.
I do not intend to make orders that neither party approach the other’s home or contact the other save by email or text message. There is no evidence that the safety of either party requires such an order. Both parties need to carefully reflect prior to the final hearing about the necessity for them to communicate in a businesslike way about [X] for [X]’s sake.
I intend to order that the parties complete a Parenting Orders Program at Resolve. The parties urgently need to focus improving their communication and on protecting [X] from conflict, and this course will assist them to focus on such issues.
There is a property application on foot and although I have given this matter a final hearing date, I also intend to order that the parties attend a conciliation conference.
As the parties were not given an opportunity during the interim hearing to make submissions about whether an order should be made for a conciliation conference or attendance at a post separating parenting course, I will give each party liberty to apply within seven days if they object to these orders being made. I will take oral submissions on these issues if required and do not require (nor do I wish) any further affidavit material to be filed.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 17 September 2009
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